First Appeal No.564 of 2008

25th November, 2008

Petitioner Counsel: Mr. R. R. MANTRI
Respondent Counsel: Mr. R. N. DHORDE,Mr. P. P. DHORDE , Smt. V. P. DHORDE

Cases Cited:
Bipin Chander Vs. Prabhawati, AIR 1956 SC 1756 [Para 9]
Prabhat s/o Shekuba Pawar Vs. Swati @ Pushpa w/o Parbhat Pawar, 2007(6) ALL MR 289=2007(6) Mh.L.J. 277 [Para 16]
Samar Ghosh Vs. Jaya Ghosh, 2007 ALL SCR 881 : (2007)4 SCC 511 [Para 17]
Shyam Sunder Kohli Vs. Sushma Kohli alias Satya Devi,, 2005(5) ALL MR 59 (S.C.)=AIR 2004 S.C. 5111 [Para 18]

JUDGMENT

JUDGMENT :- Challenge in this appeal is to judgment and decree for divorce rendered in matrimonial proceedings under section 27(1)(b) of the Special Marriage Act, 1954, bearing Spl.M.P. No.9/2006. By the impugned judgment, divorce is granted to respondent by learned Adhoc Additional District Judge, Jalgaon on ground of desertion.

2. This is a case in which love marriage between the parties could not sail smoothly and fell on rocks within a short span. Admittedly, appellant Varsha and respondent Pravin are inhabitants of same locality of Chopda township. The parental house of appellant Varsha is situated leaving only one house midway of the parental house of respondent Pravin. They were in love with each other prior to settlement of the marriage. The marriage settlement took place before about couple of months of registration of the marriage. Their marriage was registered at the Marriage Registrars office, Jalgaon, on 22nd December, 2000.

3. It is an admitted fact that respondent Pravin was employed as an electrical Engineer in an industrial unit styled as "Gharda Chemicals" at Lote-Parshuram (Dist. Ratnagiri). After the marriage he left the native town (Chopda) on 1st January, 2001 to join the service at Lote-Parshuram. He was employed as such till 15th June, 2001. After about a fortnight, thereafter, he joined Indian Institute of Technology (IIT), Madras. He completed post graduation (M.Tech.) in Computer Science and Engineering. He was appointed as Software Engineer in Tata Consultancy Services (TCS), Mumbai and worked as such since 17th February, 2003 upto 21st August, 2005. He visited Saudi Arabia for certain period on deputation. He went to U.S.A. on deputation assigned by the TCS and is presently serving as Software Engineer at Boston (U.S.A.).

4. Shorn of unessentials, his case before the Trial Court was that the appellant cohabited with him only for six (6) days after the marriage. She indifferently behaved with his family members during the said period. She was having illicit relations with one boy. She had become pregnant due to such illicit relations. She delivered a female child due to such illicit relations. Her maternal relatives alleged that it was his female child and, therefore, asked him to marry her (appellant). He was put under duress by them to marry her. When the female child was born, then her matrimonial relatives and the appellant caused death of the infant. The marriage was registered inspite of opposition by both of them. The appellant did not reside in his house. She used to frequently visit her maternal home during short duration of the conjugal relationship. She did not attend the domestic work and used to threaten him and his relatives that she would commit suicide. Thus, she subjected him to cruelty. She is residing with her parents since 20th February, 2001 without any reasonable cause and has deprived him of the conjugal rights. Though he and his relatives attempted to bring her to the matrimonial home, yet, she refused to cohabit with him. Consequently, he sought decree for divorce.

5. The appellant - Varsha resisted the petition by filing written statement (Exh-20). She denied all the material averments made by the respondent - Pravin. She denied that the marriage was performed against will of herself and the respondent - Pravin. She also denied that she resided with him only for six (6) days after marriage. She categorically denied that she was having illicit relations with a boy and, therefore, became pregnant. She denied that respondent - Pravin was under duress to perform the marriage at instance of her maternal relatives. She denied that she has deserted him.

6. The case put forth by the appellant before the Trial Court was that after the marriage, parents of the respondent, his brother and sister did not accept her in the matrimonial house as his wife. They did not talk to her and did not allow her to do any work. She was mentally harassed during his absence when he used to go out of station for purpose of his employment. She continued to reside in his house for about seven (7) months inspite of such mentally suffocative and uncongenial atmosphere due to strange behaviour of his relatives. They used to tell her that they did not want to maintain her in the house. They used to tell her that she shall give divorce to respondent Pravin on obtaining any amount from them. Eventually, on one day, respondent - Pravin had severely beaten up her at instigation of his relatives and drove her out of the house. She was pregnant at the relevant time. She delivered immature female child but the infant died within a short period after birth. Nobody from his family members came to take her back to his house. She was threatened that she would be burnt alive if she would enter his house. He nurtured hatred for her due to instigation of his parents. He used to tell her that she was unsuitable for him and shall give divorce. She was not ready to give divorce to him due to her unflinching love for him. She never refused to cohabit with him. On these premise, she sought dismissal of the petition.

7. The parties went to trial on issues settled by the learned Adhoc Additional District Judge vide Exhibit-27. They adduced oral and documentary evidence in support of the rival contentions. The Trial Court came to the conclusion that respondent - Pravin failed to prove that he was subjected to physical and mental cruelty by the appellant - Varsha. Though no specific issue was framed, yet, the learned Adhoc Additional District Judge discussed relevant evidence of the parties and came to conclusion that respondent - Pravin failed to prove allegations of her illicit relationship with one unknown boy. In other words, serious allegations about her unchastity were repelled by the Trial Court. Though respondent - Pravin feigned ignorance regarding delivery of a premature female child, yet, he did admit that she had given birth to a female child in month of August, 2000. The learned Adhoc Additional District Judge also held that respondent Pravin was not under duress and the marriage was not performed under compulsion. The learned Adhoc Additional District Judge, however, came to the conclusion that the appellant - Varsha has deserted respondent - Pravin for period of more than two (2) years before filing of the divorce petition and as such, he was entitled to seek decree of divorce. Needless to say, only on a single ground of "desertion", as envisaged in section 27(1)(b) of the Special Marriage Act, 1954, the impugned decree is rendered.

8. Mr. Mantri would submit that the divorce decree is granted without substantial reasons and though the respondent - Pravin failed to prove that the appellant deserted him. He would submit that in absence of any intention of appellant - Varsha to abandon the matrimonial relationship, the inference drawn by the Trial Court about proof of "desertion" is patently erroneous. He criticized appreciation of evidence as has been done by the Trial Court and, hence, urged to set aside the impugned judgment and decree. Per contra, learned advocate Mr. Dhorde supports the impugned judgment.

9. Before I proceed to embark upon scrutiny of the evidence, it would be appropriate to notice the relevant provision under the Special Marriage Act, 1954. Sub-clause (b) of sub-section (1) of section 27 would make it manifest that "desertion" as a ground to seek divorce decree is available likewise one available under section 13(1)(i-b) of the Hindu Marriage Act. Both the provisions are pari materia. The expression "desertion" in the context of matrimonial law is a legal concept which may vary from case to case. A comprehensive definition of expression "desertion" is not available. It is not a withdrawal from a place or matrimonial house as such, but from a state of things. The essential ingredients of the matrimonial offence of "desertion" are :

(i) the factum of separation; and

(ii) the intention to bring cohabitation permanently to an end - animus deserendi;

(iii) the element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period.

The explanation appended to section 27 is intended not to define the expression i.e. "desertion", but to highlight requirements of the rule. The Apex Court in "Bipin Chander Vs. Prabhawati" AIR 1956 SC 1756, approved the legal position summarised in Halsbury's Laws of England, 3rd edn, Vol 12,which is as follows:

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent, and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the court has discouraged attempts at defining desertion, there being no general principle to all cases.

Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated.

The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exist independently of its duration, but as a ground for... it must exist for a period of at least... years immediately preceding the presentation of the petition or, where the offence appears as a cross-charge of the answer. Desertion...differs from the statutory grounds on adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence."

10. Keeping the above legal position at back at mind, I shall now proceed to deal with evidence tendered by the parties. The respondent filed his affidavit (Exh-32) and also placed reliance on affidavits of his father - PW Madhukar and of his friend - PW Sandeep in support of his case. The affidavit of respondent - PW Pravin reiterates the averments in the petition. His cross-examination reveals that he completed graduation in Engineering (B.E.) in about August, 2000. He was knowing appellant Varsha since long. His sister by name Vidya and appellant Varsha were classmates. Therefore, she used to frequently visit his house. He admits, unequivocally, that there took place settlement talk prior to about two (2) months of the marriage. He admits further that marriage settlement ceremony i.e. 'Sakharpuda' took place somewhere in the first/second week of August, 2000. Thus, immediately after his education in Engineering, the marriage was settled. He admits the photographs (Exh-37 and Exh-41) pertaining to the marriage settlement ceremony. Obviously, the registered marriage was performed after about more than two (2) months of finalisation of settlement talks in respect of the marriage. He was employed, in the meanwhile, as Engineer at Lote-Parshuram (District Ratnagiri). Obviously, it is difficult to believe that he was under duress throughout the period of said two (2) months and was constrained to enter the wedlock. What transpires from the record is that due to previous acquaintance and intimacy, he and the appellant decided to marry by mutual consent. He admits that their houses are so proximately situated that from the terrace of his house, it is possible to reach the terrace of her parents' house.

11. The version of respondent - PW Pravin would make it manifestly clear that he never took the appellant with him at the town wherever he served. It is quite clear that the spouses were together in the house of the respondent only for one (1) week after the marriage and, thereafter, he left the native town for attending his work at Lote-Parshuram. His pleadings would show that she used to visit house of her parents and again used to come back to the matrimonial home. The respondent admits that he never provided any maintenance allowance to the appellant. He never complained to any authority that he was under duress when the marriage was registered. Once it is noticed that talks of the marriage were settled before about a couple of months, then it follows that his parents and other relatives had shown approval, although with reluctance, for the marriage. There is no substance in the allegation that relatives of both the sides did not approve such marriage. He states that the appellant had developed illicit relations with one boy prior to the said marriage. He, however, could not locate name of such a lover boy. He admits that there is no documentary evidence to show that she became pregnant due to such illicit relations with a stranger. He does not know where was the delivery of the female child born prior to the marriage. It is quite improbable that inspite of knowledge of her so called illicit relationship, he had agreed to marry to her. For sake of argument, even if it is assumed that her relatives attributed paternity to him and asked him to marry her, yet, it does not stand to reason that for about a couple of months before the marriage, he could be constantly under spell of their unlawful influence. The averments in the pleadings and version of respondent (PW Pravin) in the context of alleged duress are vague and unacceptable.

12. Coming to the version of PW Madhukar, it may be gathered that he was averse to the matrimonial relations between the appellant and the respondent. He is a well-to-do person. He admits that Deelip Tukaram Patil and Sharad Sitaram Patil are from his brotherhood and attended the registered marriage of the spouses. He also admits that he attended the marriage settlement ceremony which was performed before about 1 1/2 months prior to the registration of the marriage. He admits further that the appellant resided in the matrimonial house upto 20th February, 2001. This vital admission is ignored by the Trial Court. The implication of such significant admission is that the allegation that only after six (6) days of the marriage, she had left the matrimonial house is rendered unacceptable. The version of PW Madhukar further reveals that as a father, he never asked the respondent to take the appellant with him at the place of his service. No notice was given to her, nor any attempt was made to restitute the conjugal relationship. The version of PW-3 Sandeep is of not much evidentiary value. Not only that, he is an interested witness because of the friendship with the respondent, but he could have no personal knowledge about internal affairs in the houses of spouses. He is inhabitant of Dhule. He states that he attended the marriage and thereafter, returned to Dhule. There is no reliable basis in support of his version that the appellant deserted the respondent.

13. The evidence tendered by the respondent, considered together, is insufficient to reach conclusion that the appellant is guilty of matrimonial offence of desertion. It does not stand to reason that the young married girl could have deserted the husband when the marriage was outcome of their previous love affair. This is particularly so when the bald and wild allegation about her previous illicit relationship with a stranger is found to be without foundation. One cannot be oblivious of the fact that in her pleadings and her statement, she repeatedly expressed willingness and desire to resume the conjugal relationship. She is ready to cohabit with the respondent. He is not ready to accept her in the matrimonial home. The Trial Court noticed that the allegations about matrimonial cruelty at hands of the wife are not proved. The respondent asserted that she behaved indifferently with his parents and made his matrimonial life miserable. This allegation is repelled by the Trial Court and appears to be untrue. The fact situation appears to be other way round. What emerges from the record is that parents of the respondent nurtured inherent grudge against the appellant. They were prejudiced since before the marriage of the parties. She was persona non-grata in the matrimonial home. The respondent did not take her with him to the places wherever he had opportunity to serve in the course of his employment. Inspite of all the odds, she continued to reside in the matrimonial home atleast for about seven (7) months. The plight of a newly married young woman in the matrimonial home, in which she was an unwanted person, ought to be duly considered in pragmatic manner.

14. The version of DW Varsha (appellant) reveals that she never desired to abandon the matrimonial relationship with the respondent - Pravin. Her version reveals that he had beaten up her. He drove her out of the house and, therefore, she is required to reside with her parents under constraints. Her version reveals that during her stay in the matrimonial home, relatives of the respondent maltreated her. No one in the house used to talk with her. She was under mental suffocation due to their attitude towards her. As stated before, they were already prejudiced against her. They did not change their mind-set even after the marriage and her willingness to reside in their house. Her evidence reveals that she was practically excommunicated in the matrimonial house. Her version reveals that parents of the respondent used to instigate him and, therefore, he used to hate her. It is more probable, in view of attending circumstances, that she was unable to bear the unwelcome attitude of his parents and other relatives. She was unable to tolerate the uncondusive atmosphere in the matrimonial home and probably, left the house on account of maltreatment of the respondent and his relatives. The Trial Court discarded her version, in this context, without much reason. The Trial Court observed :

"Even though she says that during her stay she was beaten and ill-treated by the petitioner and his family members, however, she has not lodged any complaint to that effect nor any grievance was made by any family members to the petitioner or his parents. Thus except her bare words, there is nothing to that effect on record. Really she was ill-treated and not allowed by the petitioner and his family members, there was no reason for her to examine some family members on her behalf to substantiate her contention. However, no attempt to that effect has been made by her."

15. The above reasoning of the Trial Court is rather illogical. In matrimonial matters, an attempt should be made to fathom mindset of the spouses. It is not at all expected that a newly married young woman would immediately rush to police station to lodge any complaint or to otherwise commence tirade of allegations against her husband and his relatives. For, there is danger to spoil the matrimonial relationship forever if such action is taken by her or her relatives. Conversely, it could be inferred that she did not ventilate grievances against his parents and other relatives and did not lodge any complaint with the police because she laboured under impression that one day or the other, there will be reconciliation. The tolerance of such newly married young woman cannot be treated as her intention to permanently abandon the matrimonial relationship. The entire approach of the learned Adhoc Additional District Judge is somewhat queer and unrealistic.

16. A Division Bench of this Court in "Prabhat s/o Shekuba Pawar Vs. Swati @ Pushpa w/o Parbhat Pawar", 2007(6) Mh.L.J. 277 : [2007(6) ALL MR 289], held that mere separate residence by wife by itself would not amount to desertion. The Division Bench held that the husband needs to prove the animus deserendi. He is required to prove that without any reasonable cause and without his wish, the wife has permanently abandoned his company. The Division Bench proceeded to hold that irretrievable breakdown of marriage is not a ground under section 13 of the Hindu Marriage Act to claim decree for dissolution of marriage.

17. The peculiar facts obtained in the present case would make it amply clear that the respondent - Pravin has no slightest desire to continue the conjugal relationship. He is now residing at Bostan (U.S.A.). He never took the wife with him to the place wherever he served viz. Lote-Parshutam (Dist. Ratnagiri), Chennai, Mumbai, Dubai or U.S.A. The ritual of registered marriage was performed by him with a hope that the appellant could be accepted by his parents and other relatives in the matrimonial house. There was no change in the attitude of his parents and other family members and, therefore, he too showed unwillingness to continue the matrimonial relations. He did not make any serious attempt to bring her back home. There was attitude of antipathy towards her by his family members and, therefore, he is no more willing to reconcile. It may be mentioned that in this Court, attempts were made for the purpose of reconciliation. The attempts fizzled out. It will have to be, therefore, said that the marriage has been irretrievably broken down. There is nothing redeeming about future restitution of the conjugal ties. Still, however, this Court cannot grant divorce on such a ground likewise decree rendered in "Samar Ghosh Vs. Jaya Ghosh, (2007)4 SCC 511 : [2007 ALL SCR 881] by the Apex Court in the exercise of its special jurisdiction.

18. Mr. Mantri would point out that in "Shyam Sunder Kohli Vs. Sushma Kohli alias Satya Devi", AIR 2004 S.C. 5111 : [2005(5) ALL MR 59 (S.C.)], the Apex Court held that the Court must not lightly dissolve the marriage on the ground of irretrievable breakdown of the marriage. I am not required to consider whether the fact situation, obtained in the present case, requires grant of divorce decree on account of irretrievable breakdown of the marriage. It is only to be observed that the future prospects of the reconciliation are bleak. The suspicion of unchastity of wife in the mind of the respondent is unlikely to vanish. He is not likely to take her back as his wife. Hence, I have incidentally observed that the marriage is irretrievably broken down. The appellant is not proved to be guilty of desertion.

19. For the reasons aforestated, I am of the opinion that the impugned judgment and decree rendered by the Trial Court is unsustainable. The Trial Court failed to properly appreciate the evidence of the parties and took unrealistic and irrational view in the matter. Needless to say, the appeal deserves to be allowed. Consequently, the appeal is allowed. The impugned judgment and decree is set aside. The divorce petition stands dismissed. The respondent shall pay Rs.10,000/- (Rupees ten thousand) as costs of this appeal to the appellant.

Appeal allowed.