IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 10/01/2003 CORAM THE HONOURABLE MR.JUSTICE P.SATHASIVAM and THE HONOURABLE MR.JUSTICE A.K. RAJAN C.M.A.No.1550 of 1995 and C.M.A.No.1758 of 1996 C.M.A.1550 of 1995: P.Kalyanasundaram .. Appellant -Vs- K.Paquialatchamy .. Respondent C.M.A.1758 OF 1996: P.Kalyanasundaram .. Appellant v. K.Paquialatchamy .. Respondent Civil Miscellaneous Appeal No.1550 of 1995 is filed against the judgment dated 14.11.1994 in M.O.P.No.94 of 1991 and Civil Miscellaneous Appeal No.1758 of 1996 is filed against the judgment dated 7-8-1996 in M.O.P.No.110 of 1995, on the file of the Family Court, Pondicherry. !For Appellant : Mr. V.K.Muthusamy, S.C., for Mr.N.Jothi ^For Respondent : Mr.Lakshmi Narayanan. :COMMON JUDGMENT A.K.RAJAN, J. The appellant and the respondent are husband and wife; the marriage between them took place on 4.7.1984 at Pondicherry, according to Hindu rites and custom; It was also registered before the Registrar, Pondicherry. The husband was working in the Ministry of Civil Aviation, New Delhi. Soon after the marriage, the husband and wife were residing at Delhi till 1988; they are living separately from 1988. There were some earlier judicial proceedings between the parties. Presently, the husband filed M.O.P.94 of 1991 on the file of the Family Court, Pondicherry against the wife seeking dissolution of marriage. The Family Court dismissed his petition. C.M.A.No.1550 of 1995 is against challenging the judgment dismissing his petition for divorce. Subsequent to the dismissal of M.O.P.94 of 1991, the wife filed M.O.P.110 of 1995 seeking restoration of conjugal rights. The Court granted a decree of restitution of conjugal rights; Challenging that, the husband has preferred C.M.A.No.1758 of 1996. Thus in both the C.M.As., the husband is the appellant. In view of the nature of dispute, both the C.M.As. are heard together. C.M.A.No.1550 of 1995: 2. The husband in his petition, M.O.P.94 of 1991 has stated that the wife had an overwhelming attachment towards her father and had an irresistible temptation to meet her father and hence very often she visited Pondicherry and stayed there for months together. The father of his wife is a wealthy person in the locality; He wanted his daughter by his side in Pondicherry; hence he requested the husband to get a job in Pondicherry; It was not to the liking of the husband. In the year 1988, the wife left the matrimonial home at Delhi and did not return thereafter, in spite of repeated requests made by the husband. This compelled the husband for making an application to the University of Pondicherry for a job; But he did not get the job. The father of the wife did not send her back on the ground of giving medical treatment; When he asked for a proof of her daughter's treatment, he abused him. A child was born to them on 5.7.1987. The petitioner was always prepared to condone the failings of his wife and take her and lead a peaceful life; Therefore, he filed a petition for restitution of conjugal rights in H.M.A.409 of 1988 before the District Judge, Delhi. But, the wife filed a petition before the Principal Sub-Judge, Pondicherry in M.O.P.No.96 of 1988 (re-numbered as M.O.P.25 of 1990) seeking judicial separation. The wife obtained stay of the proceedings of the Delhi Court. In view of the stay order granted by the Supreme Court, he withdrew that petition and presented another petition with the same prayer before the Family Court, Pondicherry in M.O.P.182 of 1990. The respondent/wife invented a string of stories of cruelties in her petition for judicial separation. They are only imaginary and invented only for the purpose of counter-blasting his petition for restitution of conjugal rights. Further, the wife sent petitions to his higher officers in the year 1990 making false allegations; and in the year 1990 also requested to take disciplinary action against the petitioner; in that, she has stated the purpose of the petitioner seeking a relief of restitution of conjugal rights was only to take her to Delhi and to kill her. The respondent/wife also filed a complaint before the Pondicherry Police Station on 25.9.1988. The false allegations made by the respondent against the petitioner are only to cover up the abnormal relations of the respondent with her father. The above conduct of the wife amounts to cruelty. 3. It is further stated that the Family Court at Pondicherry heard M.O.P.25 of 1990 and 182 of 1990 and by a common order dated 5.9.1990 granted judicial separation for none months in M.O.P.25 of 1990, it also directed the petitioner to pay Rs.600/- per month as maintenance to the child and adjourned the matter to 10.6.1991 in order to see whether the parties could come together. But the respondent/wife filed appeals against the order of the Family Court, dated 5.9.1990 before the High Court in C.M.As.1016 and 1017 of 1990. This makes it clear that the respondent/wife was not prepared for re-union; she was bent upon separation. Even the suggestion made by the Judges of the High Court during the hearing of the C.M.As. was not heeded by the wife. The behaviour of the respondent/wife shows that she is having the doubtful integrity and character. The petitioner was ready and willing to take her back though she left the house without just and reasonable cause. But the respondent did not join the petitioner. The conduct of the wife in withdrawing from the company of the petitioner without any just cause amounts to desertion. Further, the respondent has unjustifiably withdrawn from the society of the petitioner for more than three years. By the conduct of the wife, it is not possible for the husband to live with the wife any longer. Her continued stay with her father is wilful and intentional and amounts to desertion. Hence, he is entitled for a decree of divorce. 4. In the counter filed by the wife in M.O.P.94 of 1991, she has stated that, the husband shifted the residence in Delhi for more than four times between May and October 1988 with a view to extract money from the respondent's father; that the petitioner was always keen in getting money from her father by ill-treating her with cruelty; It is only the petitioner who approached her father seeking a job at Pondicherry; The petitioner received huge money from the respondent's father on several occasions. The statement that the respondent was having abnormal relationship with her father is mischievous and defamatory; The petitioner has filed several proceedings against the respondent, but could not substantiate his case. The petitioner initiated proceedings for restitution of conjugal rights but subsequently has withdrawn it. Hence, the present petition for dissolution of marriage is unsustainable in law. Further, it is stated that the petitioner used to beat the respondent mercilessly at Delhi; As the obedient wife, she tolerated his brutal treatment while she was in Delhi. The petitioner even threatened the respondent that he would endanger the life of the respondent at Delhi. The petitioner refused to take the respondent in spite of the order of the Court. It is not correct to say that the respondent unjustifiably withdrew from the society of the petitioner. The only motive of the respondent is to get money by threatening. 5. The wife filed M.O.P.110 of 1995 for restitution of conjugal rights; she has stated in that petition that the differences arose between the spouses due to the attitude of the husband, leading to misunderstanding resulting in series of litigations. The parties resorted to legal proceedings on burst of emotions; In 1988, both parties approached the Court of Law against each other. M.O.P.No.96 of 1988, renumbered as M.O.P.No.25 of 1990 was filed by the wife for judicial separation; M.O.P.182 of 1990 was filed by the husband for restitution of conjugal rights. The Family Court, Pondicherry passed a common judgment in M.O.P.25/1990 and M.O.P.182 of 1990, to the effect that the parties must live separately, "for a period of nine months and if the parties forget their differences and come to an understanding, they can unite together." that the husband should pay Rs. 600/- per month for the maintenance of the child. The husband did not file any appeal against that order. Instead, husband filed a petition for divorce on the ground of desertion and cruelty in M.O.P.94/1991. The Family Court in its order, dated 17.8.1992 granted a decree of divorce. Aggrieved by the decree of divorce, the wife preferred an appeal before the High Court in C.M.A.1021 of 1992. A Division Bench of this Court attempted to reconcile the dispute and tried to re-unite the parties; but to the recalcitrant attitude of the husband, it could not succeed. Therefore, C.M.A.1021 of 1992 was decided on merits; and ultimately, the case was remanded pointing out four infirmities in the order of grant of divorce. The husband went on appeal to the Supreme Court, but the S.L.P. was dismissed. Thereafter, the Family Court heard the matter and ultimately dismissed M.O.P.No.94 of 1991 on 14.11.1994. Pursuant to that order, the petitioner made various attempts to join the respondent; she has written several letters to take her back to the matrimonial home. She even contacted over phone; Her repeated appeals for re-union went unheeded. The petitioner was always willing to join the respondent. The High Court during the hearing suggested that both the parties to go to New Delhi. The respondent booked tickets and reported to the Court; but when the petitioner was ready to go back to her matrimonial home, the respondent refused to take her back; no reason was assigned for the refusal. The Division Bench of the High Court also suggested both parties to go and meet the parents of the husband at Akkur village along with the respective parties to effect a conciliation; A date was fixed by both the sides and the petitioner along with her son, mother and father, her counsel went to meet the parents; but, neither the respondent nor his counsel turned up and hence, that attempt failed. All these incidents revealed that the petitioner was always willing to join her husband and it is the respondent who without any reasonable cause had withdrawn from the conjugal home. The respondent remained silent even after dismissal of the divorce petition. Therefore, the petition for restitution of conjugal rights has been filed. The respondent's failure to protect the conjugal rights of the petitioner has compelled the petitioner to move the present application for restitution of conjugal rights. Further, it is stated that the respondent is bound to take care of the minor son Sankaranarayanan; but no steps were taken by him; He did not even visit once to see the child. In law, he is bound to maintain the child. The child is studying in a convent; for his education, clothing , food and other expenditure, a sum of Rs.1,000 /- is spent by her every month. Further the basic requirement of the petitioner's maintenance works out to Rs.2,000/-. Thus, in all, the petitioner has to be paid Rs.3,000/- per month for maintenance. The respondent is working as Under Secretary in Central Government and earns Rs.10,000/- per month. 6. The husband in the counter filed by him in M.O.P.110 of 1995 raised some preliminary objections; that the dismissal of O.P.94/91 is pending in appeal before this Court; The petitioner/wife cannot take advantage of her own wrong; When the husband/respondent filed a petition for restitution of conjugal rights in Delhi during 1988, the wife filed a suit for judicial separation before Pondicherry Court; subsequent to the order passed by the Supreme Court transferring the petition pending in Delhi to Pondicherry that petition was withdrawn by the husband. But in the petition for judicial separation, the wife had stated that she apprehended danger for her life if she was to live with the husband in Delhi. She has also alleged that the husband attempted to pour kerosene on her to burn her alive. If really the intention of the wife was to return to the matrimonial home, she would not have filed a petition for judicial separation. Even after the grant of decree of judicial separation f or nine months, the wife never showed any intention of rejoining. The petition for divorce filed under Section 13(1)(i-a) and (b) was after one year from the completion of judicial separation. 7. Further, the husband stated in his counter in M.O.P.110 of 1995 that this petition is not maintainable. She wrote letters to the Ministers, Secretaries and Joint Secretaries of Department of Civil Aviation in which he was working wherein it was stated that the main purpose of the husband filing a petition for restitution of conjugal rights was to take the wife to Delhi and to kill her; In view of such numerous letters written to his superior authorities, his career had been spoiled which amounts to cruelty. She also lodged false complaints to police against him; nearly three years after the marriage, differences arose between the spouses due to the insistence and persistence of the petitioner/wife to go to her father's house very often and due to the constant pressure exerted by the father of the wife to get a job and settle at Pondicherry; The father of the petitioner/wife is a pensioner getting Rs.40,000/- per month; Apart from that, they are having vast agricultural lands and they are also doing business in auto spare parts business in Karaikal. The petitioner has also completed her post-graduation in Sociology and she is drawing a salary of Rs.10,000/-; She is working as a teacher. It is only the petitioner/wife who deserted the matrimonial home. Even though the husband filed a petition for restitution of conjugal rights, the wife filed a petition for judicial separation and the Court also granted judicial separation; the present petition for restitution of conjugal rights is not bonafide and is designedly filed for consideration other than re-union; This petition has been filed after eight years of separation which was brought about by the petitioner herself; Therefore, this petition is liable to be dismissed on the ground of laches also. The suggestion made by the Hon'ble Judges of the High Court are conciliatory in nature. The respondent is the natural guardian for his son. The respondent has means to educate the child. In the circumstances, the custody of the child should be given to the respondent. The sole intention of the petitioner is only to harass the respondent. The petitioner is trying to take advantage of her own wrong. 8. The Family Court, Pondicherry framed seven points for consideration in M.O.P.94 of 1991. The husband was examined as P.W.1 and Exs.P.1 to P.31 were marked; On the side of the respondent, the wife was examined as R.W.1; R.W.2 has also has been examined; Exs.R.1 to R.8 were marked. Considering the evidence on record, the Family Court dismissed the petition for divorce. 9. On the Point No.1 as to whether the wife deserted the husband without any reasonable cause, the Family Court relying upon the letters written by both parties prior to the date of separate living has held that, " Ex.P.24 demolishes the plea of the petitioner." The Family Court also refers to Ex.P.9, dated 26.5.1990 sent by the respondent to Joint Secretary, Ministry of Civil Aviation, New Delhi and Ex.P.10, the copy of the police complaint given by the wife against the respondent and found that, "It is the rudimentary principle of social behaviour that between husband and wife, whenever there is any trouble, all in a sudden, they would not go to the extreme, but after harbouring their individual grievances in a part of the heart, they move normally. " Relying on these letters, the Family Court comes to the conclusion that the departure in May, 1988 by the wife was not due to the attachment to her father, but because she could not tolerate the behaviour of the petitioner. Therefore, the Family Court held that in these circumstances, it cannot be stated that the respondent/wife had animus deserendi and hence, there was no desertion on the part of the wife. 10. The Family Court also held that without any reason, simply for the love and affection towards the father, no married daughter would stay with her father abandoning her husband. The theory of abnormal relationship has not been established by the petitioner and it is totally false. Further, it held, "the ego problem on both sides prevented them from amicably settling the differences between them, but it took a litigation course and it got snowballed to the present stage."; Therefore, there is no desertion by the wife. 11. The Family Court further observed that the wife could have refrained from resorting to legal course even when the husband has filed a petition for restitution of conjugal rights; the act of the wife in filing a petition for judicial separation was nothing but, "a hasty counter-blast which triggered the anger of the husband further. " Relying upon the failure on the part of the husband to take back his wife to Delhi on the advice given by the Division Bench of this Court, the Court came to the conclusion that the wife was not at fault. 12. With respect to Point No.2 as to whether desertion, if any, by the wife got terminated on the expressing of willingness to join the husband, the Family Court has come to the conclusion that assuming that previously the wife deserted the husband, it got terminated by the unconditional acceptance of the wife to accompany the husband to resume conjugal life. 13. With respect to Point No.3 whether the desertion if any by the respondent/wife was condoned by the petitioner/husband, the Family Court held that, "mere filing of the petition for restitution of conjugal rights would not amount to condoning of cruelty." Though it is not happily worded, it appears that this issue has been decided in favour of the husband. 14. With respect to Point No.4 as to whether there was desertion, if any, for a continuous period of two years preceding the date of filing of the petition for divorce, the Court held that since the finding of the Court is that there is no desertion on the part of the wife, this point is held against the petitioner. The Family Court has also stated, " For complying with the High Court's direction only the Point No.4 has been framed and considered. As such, Point No.4 is decided in favour of the respondent and as against the petitioner to the effect that there was no desertion for a continuous period for two years anterior to the filing of petition for divorce. " 15. With respect Point No.5, the Court also found that the respondent/wife is not relying on it to live away from her husband, but she likes to live with her husband. Therefore, this point has been answered against the husband; Thus the Family Court has held that due to the act of cruelty committed by the husband, he was not entitled for the decree of dissolution of marriage. 16. (i) In M.O.P.No.110 of 1995, the Family Court has framed four points for consideration. With respect to Point No.1, the Court has found that there was no insincerity in filing the present application. With reference to the earlier petition for judicial separation, the Family Court has found that she was misguided by her counsel for filing the petition for judicial separation. Even if the fact is not proved, the respondent herein expressed her desire to join her husband. From this, this Court concludes that there was no insincerity on the part of the wife. (ii) In respect of Point No.2, whether the petitioner was entitled for the decree of restitution of conjugal rights with the respondent, the Family Court held that the respondent/husband was not able to prove any reasonable excuse for his withdrawal from the society of the petitioner. Therefore, this issue has been decided in affirmative holding that the petitioner/wife was entitled for the decree of restitution of conjugal rights as against the respondent. (iii) With respect to Point No.3 whether the petitioner was entitled for award of maintenance of Rs.3,000/-, the Family Court has held that the evidence of the wife that the husband is earning Rs.10,000/- is acceptable and grant of 30 per cent of his salary towards the maintenance of his wife and child is reasonable. (iv) Point No.4 is only for consequential relief. 17. The learned counsel for the appellant submitted that Ex.P.24, a letter written on 5.9.1984 almost three years prior to the date of separate living, cannot be the basis to decide the issue. This argument is acceptable. There is no dispute that parties were living cordially till the birth of the child in July, 1987. Inasmuch as this letter is three years prior to that date, this letter cannot be the basis to decide the issue. 18. The Family Court refers to various letters written prior to May, 1988. Only the letters, Ex.P.17 and P.19 are the letters subsequent to May, 1988; Ex.P.19 refers to the departure by the wife on 30.5.1 988; the husband apologized for his conduct on that date and Ex.P.17 reveals that he intended to her back on 22.7.1988; Thereafter, there was an attempt made by the wife to get a job for the husband in Pondicherry University; From these letters, the Court concluded that there was no intention of the wife leaving the matrimonial home. This conclusion of the Court does not appear to be correct. If the wife had no intention of leaving the matrimonial home, the wife would have joined the husband on the earliest opportunity; but even when the husband filed a petition for restitution of conjugal rights in the years 19 88, the wife resisted that by filing a petition for judicial separation on the ground of cruelty. Hence, the finding of the Court is not sustainable. 19. Further, the counsel for appellant contended that it cannot be said that the cruelty or desertion committed by the wife has been condoned by the husband. Learned counsel relied upon a decision in Dastane v. Dastane ((1975) 2 S.C.C. 326, wherein the Supreme Court held, " Condonation means forgiveness of the matrimonial offence and the restoration of offending spouse to the same position as he or she occupied before the offence was committed. To constitute condonation there must be, therefore, two things: forgiveness and restoration. But condonation is always subject to the implied condition that the offending spouse will not commit a fresh matrimonial offence, either of the same variety as the one condoned or of any other variety. ` No matrimonial offence is erased by condonation. It is obscured but not obliterated.' Since the condition of forgiveness is that no further matrimonial offence shall occur, it is not necessary that the fresh offence should be ejusdem generis with the original offence. Condoned cruelty can therefore be revived, say by desertion or adultery. `Condonation' under Section 23(1)(b) therefore means conditional forgiveness, the implied condition being that no further matrimonial offence shall be committed. " The Learned counsel next relied upon the decision in Emmanual v. Mandakini (A.I.R. (33) 1946 Nagpur 69) wherein it was held that, " Condonation means forgiveness of a conjugal offence with full knowledge of all the circumstances. It is not a question of law but of fact. Cohabitation which means connubial intercourse is prima facie evidence of condonation. There is a distinction between forgiveness and condonation and the distinction lies in the fact that condonation implies a complete reconciliation in the sense of reinstating the offender to conjugal cohabitation or intercourse. " The counsel also referred to the judgment in W. v. W. (No.2) 1954 (2) All England Reporter 829 for the proposition that whether the offer for re-union is genuine has to be decided bearing in mind the background of the case. He also referred to the following paragraph in Halbury's Law of England with reference to "offer" of return. " The offer must be genuine, that is it must be made in good faith in the sense that