B.V. Subrahmanyam vs B. Seetha

Radhakrishna Rao, J.—It is human nature that when the matrimonial relations are unfortunately ruptured between the husband and wife, both of them would be prone to invent different versions and in that they would not hesitate to throw blame for such estrangement on each other and some times such estrangement is bound to give rise to various suspicious in their minds against each other. That is what exactly had happened in this case filed by the husband who sought a divorce u/s 13 of the Hindu Marriage Act, 1955 ("the Act" for brevity) on the ground of wife's cruelty and mental torture.

The brief facts as called out from the record are as follows. The marriage between the appellant-husband and the respondent-wife was performed on 28th May, 1978 at Hyderabad according to Vedic religious system. Later the marriage was consummated. At the time of the marriage, the husband was working in the Indian Overseas Bank at Karimnagar. The wife was studying in Library Science which she later completed the course. Both of them lived together as husband and wife at Karimnagar. In February, 1979 the respondent-wife had an abortion at her parents'' house at Nampally, Hyderabad, by which time the appellant was transferred to Hyderabad from Karimnagar. They both lived for some time along with the mother of the appellant in the house of his sister at Ashoknagar and later they both resided in a rented house in Nampally area near the house of the respondent's parents. On 13-12-1979 the respondent was sent to her parents'' house for delivery and on 15-2-1980 she gave birth to a male child by name Dinakar, but unfortunately the boy died-on 6-9-1981. The appellant never cared to take her back to the matrimonial house after the delivery of the first child. Besides, he vacated the house at Nampally and started living in the house of his sister at Ashoknagar. The appellant got himself transferred to Ongole and he was relieved at Hyderabad. Branch on 31-12-1980. But before that, in pursuance of the compromise between the parties at the instance of some elders, the respondent joined the appellant on 25-12-1980 in the rented house of the appellant at Ashoknagar. The respondent also joined the appellant at Ongole between 14-2-1981 & 9-4-1981. On 10-4-1981 the appellant was asked to undergo training at Hyderabad and hence he came along with his wife to Hyderabad and dropped her at her parents'' house. Later on 24-12-1981 the respondent gave birth to a daughter by name Anuradha, Ever since the parties did not live as wife and husband.

The main contention of the appellant was that he was humiliated and insulted and be was put to both mental cruelty and physical torture at the hands of the respondent and her parents, that she was always insisting that he should abandon his family members and sisters to which he never agreed, that the respondent never co-operated with him to lead a sexual life and made his life miserable and that there is irrevocable breakdown of the marriage between them and therefore he sought a decree of divorce. The respondent-wife denied that her husband was ever subjected to any cruelty and, on the other hand, she submitted that she has always been ready and willing to lead a marital life with him and her husband was guilty of desertion and as the apprehended danger to her life. she has no alternative except to take shelter in her parent's house. Both parties suspected sorcery in this case. The appellant. was examined himself as R.W-l and also examined one more witness. On behalf of the respondent, the wife was examined herself as R.W-1. The letters exchanged between the parties and the notices were marked.

On a consideration of the entire evidence on record and also the letters exchanged between the parties in particular, the Court below came to the conclusion that it is the appellant that deserted the respondent, but not vice-versa and that it is not open to the husband to say that his wife has not cooperated with him to have sex with him. The respondent and her parents were under the impression that the boy Dinakar died of sorcery. They were also under the impression that the respondent's ill-health was also due to the sorcery. The appellant also spent a lot of money to see that himself and his wife were not affected by sorcery. The Court below did not accept this story of sorcery and rejected the same. The Court below has not accepted the version of the appellant that the respondent was avoiding his company on the pretext of ill-health. Ultimately the Court below came to the conclusion that the appellant failed to make out a case for obtaining divorce and dismissed the petition. Hence the appeal.

The differences between the husband and wife arose due to the fact that the husband insisted that they should live in the house of his sister at Ashoknagar, whereas the wife insisted that they should live separately in a rented house near her parents'' house. The appellant is more aggrieved by the conduct of his father-in-law rather than his wife. Both of them entertained an impression that their son Dinakar died on account of Sorcery. Both believed in Sorcery and contacted many people for treatment and they also felt that the ill-health of the respondent is due to the act of sorcery committed by someone else. The respondent got an impression that her mother-in-law is responsible for sorcery. Even the appellant suspected his mother and consequently he was taking care to see that his wife was sent away from Ongole when his mother was coming to Ongole and he also informed his wife that while she was at Hyderabad her presence was not brought to the notice of his mother.

On the other hand, the respondent alleged that her husband was addicted to drinks. This allegation per se cannot be said to have been invented with a view to lay a foundation as a defence in the event of her husband filing an application u/s 13 of the Act. She expressed her anxiety in her letters that he was taking drinks at the cost of his health and she also requested him to give up the habit of taking drinks. When she requested her husband to give up drinks much anterior to the date of the filing of the petition, it cannot be said that by attributing the allegation that her husband was addicted to drinks, he suffered mental cruelty.

It is true that an unreasonable accusation of drinking followed by beating against the husband by his wife amounts to cruelty. However, if it can be shown that the wife reasonably believes that her husband is addicted to drinks followed by beating it may offer her a good defence. The burden of proving that the allegations are bona fide or reasonable will necessarily be on the wife making such allegations. From the very beginning the respondent was writing letters to her husband not to take drinks and expressed anxiety about his health. She was always enquiring about his health and advising him to keep good health. She only intended that he must give up drinking but it cannot be said that it is an unreasonable accusation causing mental cruelty in the mind of her husband.

"Cruelty" whether physical, legal or mental is a good defence in a petition moved for restitution of conjugal life. Similarly in a petition u/s 13 of the Act, the husband who sought divorce on the ground of wife's cruelty must prove that his wife has withdrawn from his company without any reasonable excuse. The conduct of the husband or wife, subsequent to the withdrawal by one from the society of the other, may at the most be relevant evidence to indicate their intentions or may be taken into consideration for appreciation of the evidence led in proof of the excuse advanced for the said withdrawal but the same cannot be used to justify the said withdrawal. As per the evidence on record and the letters exchanged between the husband and the wife, it is the husband that has withdrawn from the society of his wife. It is true that the wife is bound to live wherever the husband asked her to live. But when the husband has not co-operated with his wife to create a congenial atmosphere for her to stay, he is estopped from pleading that since his wife is working at Hyderabad he is entitled to seek a divorce from her. As the respondent is an educated lady and was qualified in Library Science, she joined the Bharathiya Vidya Bhavan and earning something instead of depending on her patents. Simply because she is working at Hyderabad, it cannot be said that she has no intention of joining her husband. Both parties were interviewed by us and she expressed her willingness to resign the job provided her husband is prepared to take her to the matrimonial home, but the husband refused to take her.

The term "desertion" as defined in the Explanation to Section 13(1)(b) of the Act means "the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such and includes the wilful neglect of the petitioner by the other party to the marriage, and the grammatical variation and cognate expressions shall be construed accordingly". The second part of the explanation is, therefore, wide enough to include a situation where desertion means, not only withdrawal from place but from a state of things. It is now a settled principle of law that for the act of desertion to exist, there must be two elements present on the side of desertion spouse namely the factum i.e. physical separation and the animus deserandi, that is, the intention to bring cohabitation or the matrimonial consortium to an end. The elements present on the side of the deserted spouse should be absence of consent and absence of conduct reasonably causing the deserting spouse to form his of her intention to bring cohabitation to an end. To constitute desertion both these elements must co-exist. If we take into consideration the oral evidence and the letters exchanged between the parties, it is the husband that was responsible to keep his wife away from his company.

The learned counsel for the appellant contended that the wife was writing nasty letters about sex. The appellant came forward with the plea of sexual starvation. It is the appellant that has not created any congenial atmosphere to have cohabitation with her. When there was no response from her husband, she ultimately resorted to writing letters with some romantic fiction. In one of the letters she expressed that she was feeling shy to write letters in the language to the liking of her husband. Therefore, it can never be presumed that she wrote objectionable and nasty letters about sex. The desire expressed by her to join him to have a sexual conduct with him demonstrates that she has always been a willing and co-operative partner. She has not written letters to any third party. She has only written letters to her husband in the terms that are being used in connection with their sexual life. Preserving those letters and exhibiting the same in the Court as a defence shows that the husband is responsible for creating mental agony in the mind of his wife.

The respondent wrote a series of letters. Exs. A-26, A-27, A-28, A-29, A-32 to A-34 are some of the letters stating her misfortune as the appellant was not visiting her and their daughter. All these letters show that she was prepared to join him at Ongole or at any place of his choice. In the face of these letters, it cannot be said that the respondent prevented the appellant to have sexual life with her. The respondent was unwell on a number of occasions. But the letters written by the respondent show that the conduct of the appellant was responsible for her illness and due to her ill-health only she could not join the appellant at Ongole. After writing the letter Ex. B-12 the appellant never wrote any letter to his wife not to speak of visiting her at Hyderabad. The. appellant contended that his wife visited Ongole before filing of the petition and also visited Madras after the filing of the petition and created bad scenes in his office. Admittedly the appellant shifted his house at Ongole and therefore the wife approached him at the Bank and there is nothing unnatural on the part of the wife to go to the Bank to meet her husband as she was not aware of the house of the appellant. The action of the respondent in approaching the appellant at the Bank cannot be treated as a gross misconduct on the part of the wife and it does not amount to subjection of cruelty.

It is further contended by the learned counsel for the appellant that due to mental cruelty and torture created by the respondent, the appellant suffered ill-health, but no evidence has been let in on behalf of the appellant in this regard. On the other hand, in the letters written by the wife, she expressed that she was getting pains and headache on account of the conduct exhibited by her husband. It is to be noted here that the respondent fell sick a number of times immediately after the marriage till the birth of the first child within a span of three and half years. After the marriage she had once abortion and birth of a male child and death of that child and birth of a female child. Because of the frequent pregnancies and the mental shock due to the death of her first male child and the treatment in connection with the alleged sorcery and the conduct of the appellant, all put to mental agony to the wife and to some extent the appellant also is responsible for her ill-health and mental agony.

The letters written by the appellant to the respondent go to show that he wanted to meet her not at her parent's house but at public places like Public Gardens and Tank Bund etc. By expressing such a desire to meet her at public places, the appellant has not created any congenial atmosphere for his wife to live with him and, therefore, it can be presumed that it is the appellant that created utter chaos and confusion in the mind of his wife and this shows that he was not really interested in her.

The appellant filed an application CMP No. 2319 of 1990 Under Order 41 Rule 27 read with Section 151 C.P.C. to receive the documents as additional evidence to show that subsequent to the filing of the divorce application by him, a criminal complaint was made to the Police at Nampally by the respondent u/s 498-A and 406 LP.C and he obtained anticipatory bail from the Court of the II Additional Metropolitan Sessions Judge, Hyderabad and after enquiry the police referred the case as a mistake of fact. It is very difficult for the wife or for her relations to prove the second marriage. The respondent got information through her relations that the appellant was living with another woman and both of them are living as husband and wife. No doubt unfounded allegations without any basis or impression amounts to mental cruelty. But there is reasonable apprehension in the mind of the respondent due to the adament temparament of her husband and the information she got through her relatives that her husband married for the second time without her knowledge and consent. It cannot be presumed that it is an act done by the wife which caused mental cruelty. Failure to prove the second marriage is not a ground for the husband to contend that he was put to mental cruelty, and, therefore, he is entitled for the divorce. The Dowry Prohibition Act is in existence. But it is difficult to prove that dowry was passed on in the marriage. Sometimes to dowry may be in the form of presentation of valuable items. Taking recourse to the statutory remedies that are available per se are not grounds to arrive at the conclusion the me party caused mental cruelty to the other unless it is found that unfounded allegations have been made with a view to malign the other party.

For the foregoing reasons we find that the appellant has failed to make out a case for obtaining divorce.

The appeal is accordingly dismissed. No costs. CMP No. 2319 of 1990 is allowed.