IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :02.07.2010 CORAM : THE HONOURABLE Mrs.JUSTICE R.BANUMATHI and THE HONOURABLE Mr.JUSTICE B.RAJENDRAN Civil Miscellaneous Appeal No.3768 of 2004 Venkatasubramani .... Appellant/Petitioner vs. Sreemathy .... Respondent/Respondent Civil Miscellaneous Appeal filed under Section 19 of the Hindu Marriage Act 1955, read with Family Court Act, 1984 made in FCOP.No.280 of 2003 dated 20.07.2004 on the file of II Additional Family Court, Chennai. For Appellant : Mr.A.Muthukumar For Respondents : Mr.S.Parthasarathy JUDGMENT R.BANUMATHI,J This appeal arises out of the Judgment dated 20.7.2004 made in F.C.O.P.No.280 of 2003 on the file of II Additional Family Court, Chennai dismissing the Petition filed by the Appellant-husband under Sec.13(1) (i-b) of Hindu Marriage Act. Unsuccessful husband is the Appellant. 2. The marriage between the Appellant and Respondent was solemnized on 10.03.1991 in Chennai as per Hindu rites and customs. Out of lawful wedlock, two children – one son and one daughter were born. Case of Appellant is that after the marriage, Respondent-wife was in the habit of leaving the matrimonial home and that she insisted for setting up a separate matrimonial home. For delivering the first child, she went to her parents house and she did not return back to the matrimonial house and during the month of July 1994, she left for her parents house without any reason and stayed for more than eight months. At the intervention of Police, she resumed cohabitation. Appellant has alleged that Respondent has attempted to burn her saree in gas stove and attempted to commit suicide and on another occasion, she poured kerosene on the body of the Appellant and always alleging as if the Appellant has been demanding dowry from https://hcservices.ecourts.gov.in/hcservices/ her. On 28.02.1996, Respondent left the matrimonial house without informing the Appellant. Without any reasonable cause, Respondent deserted the Appellant and hence Petition under Sec.13(1) (i-b) of Hindu Marriage Act was filed seeking dissolution of marriage. 3. Denying the averments in the Petition, Respondent/wife filed counter contending that for 'Thaali Piritchu Korthal' function, she went to her parents house. Case of Respondent is that after delivery of first child in November 1992, she stayed in her parents house for eleven months. Since the child was a premature baby and he was suffering from ill-health and therefore, she was compelled to stay in her parents house for about eleven months. Respondent has averred that she was compelled to live in Appellant's sister's house where she was forced to do all the household works and only during night time, Appellant used to take her back. Stating that she never insisted for separate residence, Respondent filed counter praying for dismissal of the Petition for divorce. 4. Before the Family Court, on behalf of the Appellant, Appellant examined himself as PW1 and his mother was examined as PW2 and Exs.P1 to P5 were marked. On behalf of the Respondent, Respondent examined herself as RW1 and Ex.R1 receipt was marked. 5. Upon consideration of oral and documentary evidence, Family Court held that the husband cannot compel the wife to live along with her in-laws and that there is nothing wrong in asking to set up jdp Foj;jdk;/ Family Court further held that there was no genuine effort by the Appellant to get himself reunited and that there was no animus deserendi. Referring to Exs.P4 and P5, Family Court further held that Respondent never wanted divorce and that she only wanted restitution of conjugal rights. Finding that insistence for separate matrimonial home cannot be a ground for divorce, Family Court dismissed the Petition filed by the husband for divorce. 6. Learned counsel for the Appellant contended that without any justifiable reason the Respondent/wife left the matrimonial house and inspite of the efforts of the Appellant to solve the problems, the Respondent has not re-joined and animus deserendi is well established. It was further contended that the Respondent has left the matrimonial house in February 1996 and did not return back and the animus deserendi and the desertion are well established and while so the family Court erred in finding that the animus deserendi is not established. 7. Supporting the findings of the Family Court, the learned counsel for the Respondent submitted that the Respondent/wife had gone to her parents house on 28.2.1996 for the delivery of the child https://hcservices.ecourts.gov.in/hcservices/ and the Appellant had not chosen to reconcile the differences and the Appellant cannot be allowed to take advantage of his own wrong. Learned counsel for Respondent submitted that the Respondent has clearly spoken about the ill-treatment meted out to her and therefore she was justified in asking for separate matrimonial home and the same cannot be a ground for divorce and the Family Court has rightly dismissed the petition for divorce. 8. The marriage between the Appellant and the Respondent was solemnised on 10.3.1991 and the Appellant and Respondent were living in the matrimonial house in Washermenpet. Mother of the Appellant (P.W.2) was living with them and sister of the Appellant was living in the next adjacent house. Even before the marriage the Respondent was employed as a teacher in Sheeba Matriculation Higher Secondary School and after marriage she has continued as a teacher. Some time after marriage the Respondent conceived and she has gone to her parents house for delivering the first child. Since the first child was born (on 20.11.1992) pre-maturely the Respondent stayed in her parents house for about 11 months. Thereafter the Respondent went to the house of the Appellant and within three months, again she conceived. Since the first child was a pre-mature child, which had to be taken care of, the Respondent aborted the second child. 9. In July 1994, the Respondent left for her parents house. According to the Appellant, she left to her parents house on her own without any reasonable cause. Per contra, the stand of the Respondent is that the Appellant was constructing the house and due to dust allergy, the first child got primary complex and because of her pre-occupation with her work, she could not properly attend to the child and therefore she had gone to her parents house. At that stage, the Appellant had given a police complaint and at the intervention of the police, the Respondent re-joined the husband and went back to the matrimonial house. In her evidence, the Respondent has stated that she has re-joined her husband with the expectation that they would be having a separate kitchen. The Respondent has further stated that when she went back she saw that the family had the common kitchen both for the Appellant and his sister. The evidence of R.W.1 reads as under: "vd; fzth;. vd; khkpahh; jdpahf xU rikaYk; vd; ehj;jdhh; mth; FLk;gk; xU jdp rikaYkhf thH ntz;Lk; vd;whh;/ ehd; mJgo vd; fztUld; ngha; thHr; brd;nwd;. Mdhy; bghJ rikay;jhd; m';F ,Ue;jJ/ jdpj;jdp rikay; Vw;gLj;jtpy;iy" 10. R.W.1 has also stated in her evidence that she has to give her entire salary to her mother-in-law and during that time she has to attend the household work of the Appellant as well as the sister of the Appellant. The Respondent has again conceived. The Respondent has further stated that even though she was pregnant, she was compelled to do the household work of not only the Appellant but https://hcservices.ecourts.gov.in/hcservices/ also of his sister and when she was unable to do the work, she was chased away from the matrimonial house on 8.3.1996. The Respondent has further stated that thereafter the Appellant came to her house and insisted to sign in blank paper to enable him to get married for the second time and when the Respondent and her family members resisted the same, the Appellant had beat her brother and abused her father and therefore the Respondent had given complaint (Ex.R.1) to the police station. The relevant portion of the evidence of R.W.1 reads as under: "vd;dhy; fh;g;gkhf ,Ue;jjhy; vd; ehj;jdhUf;F ntz;oa tPl;L ntiyfis bra;a Koatpy;iy/ Mfnt vd;idf; fztUk;. vd; khkpahUk; vd;id tPl;il tpl;L nghfr; brhd;dhh;fs;. tPl;L ntiy bra;ahjjhy; vdf;F rhg;ghL nghltpy;iy/ ,uz;L khjkhf vd; fztUk;. vd; ehj;jdhUk; vd;id vd; fGj;ijg; gpoj;J btspna js;sptp;l;lhh;fs;/ ehd; fl;o ,Ue;j MilnahL vd; jha; tPl;ow;F 08/03/1996y; nghndd;/ vd; jha; tPl;ow;F te;J vd; fzth; vd;id jhd; ,uz;lhk; jpUkzk; bra;J bfhs;s rk;kjk; nfl;L bts;isj; jhspy; ifbahg;gk; nfl;lhh;/ ehd; nghl;L jutpy;iy/ mg;bghGJ ehd; VG khj fh;g;gpzp. vd;id vd;fzth; moj;J ifbahg;gk; nfl;lhh;/ vd; je;ijia juf;Fiwthfg; ngrpdhh;. vd; jk;gp re;JUit moj;jhh;/ rz;il mjpfkhdjhy;. nghyP!; epiyaj;jpy; gpuhJ bfhLj;njd;/ vf;!;/gpl;.Mh;/1 .... " 11. As rightly held by the learned trial Judge, if really the Respondent had no intention to have re-cohabitation she would not have re-joined the Appellant in 1994 and she would not have conceived for the second time within three months after such re-union and that is indicative of the fact that R.W.1 has no animus deserendi. The very fact that Respondent has rejoined her husband number of times would show that the Respondent was always interested in living with the Appellant, of course, in a conducive atmosphere. 12. Under Section 13(1)(ib) of Hindu Marriage Act, the petitioner/ Appellant herein has to prove (i) that there was desertion for a continuous period of two years immediately preceding the presentation of the petition; (ii) the desertion was without reasonable cause and without the consent or against the wish of the petitioner/Appellant herein. The desertion requires four important elements viz., (i) factum of separation (ii) necessary intention to put an end to matrimonial consortium and cohabitation permanently, (iii) want of reasonable cause and (iv) want of consent or against the wish of the other spouse. 13. In AIR 1964 SC 40 (Lachhman Uttam Chand Kirpalani v. Meena) the Supreme Court has held that where the wife refused resumption of marital cohabitation for a reasonable cause as there was hostile atmosphere and ill-treatment in the husband's house it does not imply animus deserendi. Mere leaving the matrimonial home is not sufficient. Animus deserendi at the time of leaving the matrimonial home has to be proved. Where a wife is forced to live away from the matrimonial house because of the ill-treatment, it cannot amount to desertion. https://hcservices.ecourts.gov.in/hcservices/ 14. "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 otherwords, 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 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. The party seeking divorce on the ground of desertion is required to show that he or she was not taking the advantage of his or her own wrong. (vide SAVITRI PANDEY VS. PREM CHANDRA PANDEY ((2002) 2 SCC 73). 15. As seen from Ex.P.5 (13.4.1996), Respondent/wife has offered to return provided that the Appellant sets up a separate residence. Having regard to the facts and circumstances brought out in evidence, learned judge of family Court has held that the offer made under Ex.P.5 to re-join was a bonafide offer. When the Respondent, who was in the family way, has left the matrimonial house in March, 1996, the Appellant was not justified in going to her house and insist to give consent for his second marriage and the said incident resulted in lodging a police complaint by the Respondent. There is nothing on record to hold that the Respondent had ever declared to bring the marriage to an end or refused to have cohabitation with the Appellant. In our considered view, while the Respondent was in the family way, it was unfair for the Appellant to insist the Respondent to give consent for the second marriage. As such, we do not find any intentional desertion by the Respondent. Allowing the Petition for divorce would amount to allowing the Appellant/husband to take advantage of his own wrong. 16. As pointed out earlier, in Ex.P.5, the Respondent has made a bonafide offer to resume cohabitation, but the Appellant has not taken any genuine steps for re-union. In Ex.P.5 notice issued by the Respondent, she has stated that she is prepared to rejoin provided the Appellant sets up a separate residence. 17. Referring to Ex.P.5 notice, the learned Judge of family Court rightly held that there was no animus deserendi on the part of the Respondent so as to attract the ingredients of Section 13(1)(i-b) of Hindu Marriage Act. The Respondent, having not made any bonafide efforts to rejoin the Appellant, is not entitled to the relief. In fact, the Respondent is said to have filed petition in O.P.No.3506 of 2007 for restitution of conjugal rights, which the Appellant is said https://hcservices.ecourts.gov.in/hcservices/ to be contesting. As rightly held by the learned trial Judge, insistence by the Respondent for setting up separate residence cannot be the ground for granting divorce. The findings of the trial Court are well balanced and based upon evidence warranting no interference. 18. In the result, the order dated 20.7.2004 of the II Additional Family Court, Chennai made in F.C.O.P.No.280 of 2003 is confirmed and the Civil Miscellaneous Appeal is dismissed. However, there is no order as to costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To: The Presiding Officer, II Addl.Family Court Chennai. 1 cc To Mr.S.Parthasarathy, Advocate, SR.47450 1 cc To Mr.A.Muthukumar, Advocate, SR.47300 CMA.No.3768 of 2004 VSV(CO) sra 22/07/2010 https://hcservices.ecourts.gov.in/hcservices/