Veeresh vs Jyoti

Anand Byrareddy, J—These appeals coming on for admission is considered on merits as the point involved is limited to whether there was a cause of action for the appellant.

The brief facts are that the appellant had filed a petition under Section 13(1)(ia) and 13(1)(ib) of the Hindu Marriage Act, 1955 (Hereinafter referred to as the "HM Act", for brevity), seeking divorce on the ground of cruelty and desertion. The respondent herein, the wife of the petitioner, had filed a petition under Section 9 of the HM Act, seeking restitution of conjugal rights and other reliefs. The matters were clubbed and common evidence was tendered.

The appellant is said to be an Electrical Engineer, working as a Corporate Applications Engineer in a private Company in Canada and the respondent is also said to be a graduate in Electronics and Communication Engineering. The marriage of the appellant and the respondent was said to have been performed according to Hindu rites and ceremonies on 21.6.2006 at Hubballi. The said marriage was an arranged marriage. The appellant had left for Canada in the last week of June 2006 and the respondent had followed him in the month of August and joined him there and within a period of six moths, it transpires that the respondent faced serious health problems, as she was diagnosed for Chronic renal decease, namely, Glumerular Nephritis. The appellant got her treated in Canada and it was opined by the doctors that the said disease was incurable and therefore, it transpires that the respondent had returned to India on 8.2.2007 and was residing at her parents'' house in Hubballi. Therefore, it was alleged that the appellant and the respondent had resided together as a husband and wife only for a brief period of six months and there were no children born to them.

It was claimed by the appellant that though the respondent was staying in her parents'' house, he continued to spend generously towards her continued treatment and had spent over a sum of Rs. 2,00,000/-. She was admitted to a hospital at Bangalore and had received intensive treatment. The appellant had visited India during December 2007, August 2008, July 2009, and in December 2009. It was alleged that the respondent did not reveal the further diagnosis and treatment that she had received at Bangalore, the results of opinion expressed by the medical practitioners and it was only noticed that the respondent continued to be ill and therefore, he had been deprived of all matrimonial comforts for 3 long years and he had returned to Canada and therefore, it was evidenced that the marriage was irretrievably broken down on account of the respondent's continued illness, which was of a serious nature. It was hence alleged that there was a total desertion on the part of the respondent and the non-cohabitation between the appellant and the respondent, according to the appellant, amounted to cruelty on account of denying the matrimonial relationship. The very idea of marriage lost its essence and flavour on account of the illness of the respondent and hence, the petition for divorce was filed.

The respondent, on the other hand, who had sought for restitution of conjugal rights, contended that the real reason for the appellant to claim that there was desertion and cruelty was only in order to get rid of the respondent and in actual fact, the appellant and his sister were dissatisfied with the amount received as Varapooja amount and they had expected huge amounts of money apart from other articles and this was root cause for claiming that the petitioner was incurably ill and that she could not lead a normal matrimonial life. It was the further case of the appellant that the appellant had proposed to a lady divorcee, who was in the United States of America and that he intended to marry her and in the process, he had sought for divorce of the respondent, apart from other contentions that they were taken. The Court below having addressed the respective petitions had framed the following points for consideration:--

"1. "Whether the petitioner Veeresh proves that the respondent subjected him to cruelty after solemnization of marriage?

Whether the petitioner further proves that the respondent deserted his company continuously for a period of 2 years next before the petition?

Whether the respondent/wife proves that the petitioner withdrawn from her society without any reasonable cause?

Whether the petitioner/husband is entitled for the relief of decree of divorce as prayed for?

Whether the respondent/wife is entitled for the relief of restitution of conjugal rights and permanent injunction as prayed for?

Whether the application filed by the respondent under Section 24 of the Hindu Marriage Act praying for an order directing the petitioner to pay Rs. 5,60,792.00 and additional amounts going to be claimed by the respondent deserves to be allowed?

What order or decree?"

It was found by the Court below that the claim by the appellant that she was incurably ill and that she was incapable of performing her marital duties and leading a normal matrimonial life has been negatived on the finding of a medical practitioner that she is completely cured and that she is capable of leading a normal matrimonial life. The Court below has dismissed the petition filed by the appellant and has allowed the petition filed by the respondent. It is that which is under challenge in the present appeal.

Insofar as the ground urged that there was cruelty on the part of the respondent is not readily acceptable. It is not the case of the appellant that there was any positive acts of cruelty. It is only a manner of stating the fact as to the respondent suffering from a serious illness, which resulted in the appellant being deprived of normal matrimonial life and since he was so deprived, it amounted to cruelty. It cannot be said that there was any positive act of cruelty on the part of respondent. It is a fate that resulted in the respondent suffering from an illness. This cannot be attributed as being created or brought about by the respondent herself. It is, on the other hand, she who has suffered illness over a sustained period of time and has ultimately been cured of the same. It would be more proper to state that it is the appellant, who has inflicted cruelty on the respondent by neglecting and denying her right as a wife to continued matrimonial life. The contention that she was incurably and terminally ill has been proved wrong. She is now recovered and capable of leading a normal matrimonial life. Secondly, the further ground that the respondent had deserted the petitioner is also not found to be correct. It is on the mistaken impression that the respondent has suffered from an incurable disease and that she was terminally ill, that she had been sent back from Canada to India and not on account of her own wish or intention. Therefore, it cannot be said that she has deserted the appellant. The appellant choosing to intermittently visit her and give up hopes on the respondent's well being, cannot be attributed as being desertion on the part of the respondent. On the other hand, it can well be said that it is the appellant, who has deserted the respondent. Therefore, there is no ground made out in these appeals.

Even if the appellant had sought to invoke Section 13(1)(iv) and 13(1)(v) of the HM Act, it would not be available to the petitioner as the incurable form of leprosy or communicable form of venereal disease are two diseases that are grounds for seeking divorce and it is unfortunate that such diseases can be made as grounds for divorce, when they are both diseases which are capable of being cured. Therefore, there is no ground available for the appellant to seek divorce. The Court below has rightly dismissed the petition. There is no merit in this appeal. The appeal stands dismissed.

Insofar as the connected appeal in MFA 101175/2014 is concerned, is filed questioning the decree passed in favour of the respondent seeking restitution of conjugal rights. Having regard to the dismissal of the appeal preferred by the appellant, questioning the dismissal of divorce petition and the grounds raised by the respondent having been accepted by the court below, there is no merit in this appeal and the same is also dismissed.