CMA/1532/2001 of Injamoori Anitha Vs Injamoori Sudharshan on 29 December 2009

HON’BLE SRI JUSTICE B. PRAKASH RAOand

HON’BLE SRI JUSTICE G. BHAVANI PRASAD

C.M.A. No. 1532 of 2001

DATED: 29.12.2009

Between:

Injamoori Anitha .. Appellant

And

Injamoori Sudharshan .. Respondent

JUDGMENT:- (Per Hon’ble Sri Justice G.Bhavani Prasad)

The grant of divorce in favour of the respondent-herein in O.P.No.38 of 1998 on the file of the Senior Civil Judge, Nizamabad, by theorder dated 16.01.2001 led the aggrieved appellant-wife to file thepresent appeal.

The respondent-husband filed a petition for divorce contendingthat after the marriage with the appellant herein on 19.05.1985, theylived together happily for six months. Thereafter, the appellant hereinstarted visiting her parents very frequently without informing therespondent herein or his parents. He claimed that notwithstanding anypanchayats and advice by the caste elders, the appellant hereinultimately left him on 20.10.1986 without information to him or hisparents. He claims that his wife refused to join him in spite of his goingto the house of his wife’s parents on 29.10.1986 and in spite of furtherapproaches through the caste elders. He further claimed that the wifewas claiming maintenance as per the order in M.C. No.41 of 1989without coming back to him. Hence, he sought for divorce.

The wife, who is the appellant herein, contested the requestcontending that the marriage and their living together for sometime areadmitted while the respondent herein had a second marriage in 1988due to which the wife had to go back to her parents’ house. Thecouple was blessed with a son, who was aged 12 years by the time ofthis petition, but the husband never attempted to take back his wife orthe son. Hence, the wife sought for dismissal of the petition.

During the enquiry, the trial Court had examined PWs.1 and 2and RWs. 1 to 3 and Ex.X1 was marked.

The trial Court, in the impugned order, noted that the marriageand separate living of the spouses since 29.10.1986 are not in disputeand the only reason claimed by the wife to justify her separate livingwas the alleged second marriage by the husband and it was furtherclaimed that the husband and the second wife also had three childrenthrough their relationship. The trial Court found that the husband fileda petition for divorce almost about 12 years after the separation of thespouses and it also found that the admitted separate living since 1986and the filing of the maintenance case show that there was no love lostbetween the couple. The trial Court also observed thatnotwithstanding the offer of RW1 during the evidence that she wasprepared to join the company of the husband, there was no otherevidence of her ever attempting to go back to the husband and the trialCourt also noted that the claim of PW1 that the case filed against himfor bigamy ended in acquittal was not contested. The trial Court furtherfound that there were no details of the alleged second marriage. Therefore, concluding that the wife deserted the husband since 1986,the trial Court granted the relief of divorce to the husband.

The complaint of the wife in this appeal is about the trial Courtnot noting that the husband stated in his evidence as PW1 that he wasnot prepared to receive his wife and that the wife was compelled to liveseparately because of such refusal. It was also claimed that the wifepositively stated in evidence about his adamant nature in spite of herefforts more than 10 times to rejoin her husband by going to his houseand as it was her husband, who married again and had three childrenthrough the second wife, the conclusion of desertion by the wife wasunjustified. As the wife was always ready to join the husband, thedivorce petition ought to have been dismissed.

The learned counsel for both the parties are heard at length.

The only point for consideration is whether the husband isjustified in seeking the relief of divorce from the wife?

The husband as PW1, reiterated his claims and stated that the basic reason for separation of the couple is her frequent visits to herparents’ house without any information to the husband or his parents inspite of the panchayats and advices by caste elders. He also statedabout the maintenance case filed by the wife, and the orders thereinagainst which the revision filed before the District & Sessions Judge,Nizamabad is since then pending. He denied his second marriagewith one Gangamani and having three children through her and alsostated that the complaint filed by the wife alleging such secondmarriage ended in acquittal, and though the judgment of acquittal wasnot before this Court, such claim of PW1 was left unrebutted anduncontroverted. Though the husband did not give any notice to thewife asking her to come back as admitted by the husband as PW1, thehusband, who claimed that he never harassed the wife also furtherclaimed that he was paying maintenance awarded by the Magistrate’sCourt. Though he did not take any steps to get the custody of the sonborn through the wedlock between the parties, his evidence before thetrial Court does not in any manner suggest the possibility of the fault forseparation lying with him. His father was examined as PW2 before thetrial Court and he corroborated the claims of the husband. He alsodenied the husband getting married again and having three childrenthrough the second wife, and though the evidence of PWs.1 and 2 isinterested, it cannot be straight away discredited as false in view of thecircumstances arising out of the evidence of the wife also due to whichit can be considered that it corroborates the claims of PWs.1 and 2.

The wife as RW1, while claiming that PW1 went for secondmarriage in 1988, did not give any details of the date or place of themarriage or any other acceptable circumstances probablizing suchsecond marriage. The wife did not attribute any specific reason for thehusband not looking after her properly after three years of theirmarriage and after having a son, and she had to admit that thecomplaint filed by her with the police, Dichpally alleging an offenceunder Section 498-A IPC against the husband and his parents ended in acquittal on merits. She also had to admit that the husband waspaying the maintenance amount since five months prior to herevidence and she had not stated that she was a witness to the secondmarriage. The wife filed a case for maintenance only in 1997 and wassilent in spite of their separation since 1986 and in spite of the allegedsecond marriage in 1988, which also is not natural. The wife as RW1admitted that she did not file any petition for restitution of conjugalrights in spite of separate living for about 12 years and she did not sayanything about the second marriage being witnessed by any personwho has either attended the said marriage or has any personalknowledge about the same.

Conclusion

More reliance was placed by the wife before the trial Court andhere also on the evidence of RW2 who marked Ex.X1 - copy of theadmission register of his school to show that one Injamoori Sudershan(a name identical to that of the husband) admitted his daughter,namely Injamoori Madhavi in the school on 14.06.1995. However, hisown evidence that there was no student by name Injamoori Venustudying in their school in 3[rd] class shows that the claims of the wife inthis regard were also incorrect and her application to summon theschool records speaks about one Injamoori Srinivas, S/o Sudershanstudying 3[rd] class in the said school. It was not even suggested toRW2 that there was any boy with the name of Srinivas S/o.Sudershanstudying in the school. That apart, RW2 admitted that he was not theclerk concerned, who was present at the time of the admission ofMadhavi in the school, and he had also admitted that there are severalpersons with the surname Injamoori or with the name Sudershan orMadhavi. It cannot be said from such evidence that the studentMadhavi can be identified as the daughter of the respondent hereinwithout any doubt. The witness also had to admit that no birthcertificate or caste certificate was produced at the time of admission ofMadhavi into the school and thus though the evidence may arousesome suspicion against the husband, it cannot be taken as a conclusive proof of the husband having any children through hissecond marriage one of whom was admitted in the school in whichRW2 was working.

RW3, who was examined by the wife to depose about thedisputes between the couple, had admitted that he had no personalknowledge about the second marriage of PW1 and that there were nopanchayats regarding any disputes between the husband and thewife. He also admitted that he had no personal knowledge of therelations between PW1 and RW1 contrary to his claims in the chief-examination, and thus does not provide any acceptable material toconclude that the husband is responsible for separation of the wife andhe had married again.

With such material on record, the trial Court cannot beconsidered unjustified in concluding that the separate living of the wifefrom the husband amounts to desertion, more so, when the wife herselftook up a positive defence that she went away from the husband dueto the second marriage and failed to prove such second marriage. Thebroad human probabilities arising out of the evidence, thus, do notjustify separate living of the wife from the husband for more than 12years notwithstanding the absence of any attempts by the husband toget back the wife or the son through the process of law in themeanwhile. Such desertion, being one of the permissible grounds fordissolution of the marriage under the Hindu Marriage Act, theconclusion of the trial Court cannot be interfered with in this appeal.

Accordingly, the Civil Miscellaneous Appeal is dismissed. Nocosts.

___________________

B. PRAKASH RAO,

J

29[th] December, 2009

____________________

PRASAD, J

bcj

G. BHAVANI