JOHNSON JAYAKUMAR Vs. HEMA JOHNSON

JUDGEMENT

(1.) This is an appeal against the Judgment of the learned single Judge in O.M.S. No 4/1986. The petitioner-husband, who is the appellant herein, has filed the suit under Sec. 22 of the Indian Divorce Act 1869 for a decree of judicial separation against his wife, the respondent herein. The only ground on which the relief was sought for, by the appellant/petitioner herein was that his wife had deserted him without reasonable excuse for a period of more than two years. The pleadings of the respective parties as summarised by the learned single Judge are as follows:- The petitioner married the respondent according to Christian rites on 10-7-1978 at Madras. After the marriage the respondent lived with the petitioner in Madras for a short period. She delivered a female child on 16-7-1978. The respondent joined the petitioner and lived with him for about seven months. The respondent had by then conceived and she left the petitioner's house in Sept., 1982 saying that she wated to see her parents. At that time, the petitioner and the respondent were residing in a rented house at Anna Nagar West, Madras-40. The respondent did not return to the house of the petitioner. However she gave birth to a male child on 11-12-1982 again in the nursing home situated in Ritherdon Road, Vepery, Madras-7. The petitioner states that in Jan. 1983, on a Sunday morning the respondent came to the house at Anna Nagar West, Madras-40. But in spite of the request by the petitioner, she refused to stay with the petitioner and she left the house at noon on the same day. Again in Feb., 1983 on a Sunday morning the respondent came to the petitioner's house. However, the respondent did not stay with the petitioner and left for her parents house in spite of the advice of the petitioner's friend Mohamed Ibrahim to stay with the petitioner. On 26-2-1983 the respondent wrote to the petitioner that the Baptism of the male child had to be done in the church. The petitioner wanted to have the Baptism of the child in the presence of his parents and relatives at the Church at Walajapet, the petitioner's native place. The petitioner wrote a letter on 3-5-1983 to the person in charge of Adaikalanathar Lutheran Church, Purasawalakam, Madras-84 asking him not to Christian his son without his knowledge at the instance of the respondent and her parents. However, the respondent had the Baptism of the petitioner's son with the help of her parents without the knowledge of the petitioner. Thereafter from the third week of Feb. 1983 the respondent never came to the petitioner's matrimonial home. The petitioner's friend Mohamed Ibrahim went to the respondent's parents' house and advised the respondent to go to the petitioner's house and live with him. The petitioner's father also made several attempts to persuade the respondent to come back from her parent's house and to live with him. But all these efforts did not yield any fruit as the respondent was adamant. During May, 1983 the respondent had gone to the house at Anna Nagar West, Madras-40. In the absence of the petitioner the respondent had removed all the articles and had vacated the house. She handed over the key of the house to the landlord without the knowledge and consent of the petitioner. Thus, according to the petitioner, because of the respondent's continues stay in her parent's house from Feb. 1983, and by her refusal to come to the matrimonial house to live with him, the respondent has deserted the petitioner. The unilateral act of the respondent in vacating the residential house at Anna Nagar West, after removing all the articles in the absence of the petitioner and without the knowledge of the petitioner established that the respondent had no inclination to come and live with the petitioner. Thus according to the petitioner, the respondent has once for all deserted the petitioner for a continuous period of more than two years and 9 months without any excuse much less reasonable cause. Thus, he is entitled to have a decree for judicial separation on the ground of desertion for more than two years.

(2.) The respondent resisted the petition alleging that the petitioner was guilty of cruelty and ill-treatment and therefore she had to live away from her husband. She has further stated that she is willing to join her husband if the husband would treat her kindly and affectionately by setting up a separate residence. A detailed counter was filed by the respondent in this proceedings. According to the respondent, the petitioner, his brother and sister-in-law were treating the respondent as their servant and the respondent's dream of a happy married life was shattered. She was abused and ill-treated by the petitioner, his brother and sister-in-law for trivial things. She was unable to bear the cruelty and ill-treatment. The respondent considering her health and the treatment meted out to her in the petitioner's brother's house and parent's house, the respondent refused to live in the petitioner's parent's house and also in the house of the petitioner's brother. The respondent pleaded with the petitioner not to vacate the Nungambakkam house and that she would stay with him at least during night times as before. The petitioner refused even to their reasonable request of the respondent and vacated the Nungambakkam house within three days and sent all the articles presented to her to Walajapet. In spite of the fact that the respondent intimated the petitioner through her letter that she is ready and willing to join him and requested him to take her back, the petitioner evaded to take her back. The respondent's attempts to join the petitioner were of no avail. Hence the respondent was forced to stay in her parent's house. However the respondent's request made on 5-6-1981 by her letter to the petitioner offering to come and live with him with the child, was also of no avail. In March 1982, due to the persistent personal efforts of the respondent, the petitioner agreed to set up a separate residence on the condition that the respondent should fix the house, pay the advance rent etc. for which the respondent agreed to fix a house at Anna nagar West. Thereafter the petitioner, the responded and the child started living together at Anna Nagar West from the second week of March 1982. On 12-4-1982 when the respondent requested the petitioner for money to pay to the creche where the child was left during day time, she was repeatedly slapped and hit on the face and head by the petitioner. The petitioner also prevented her and the child to visit the respondent's parents. According to her, her life at Anna Nagar house was also made miserable due to the cruelty and ill- treatment meted but to her. Further, the respondent has stated in her counter that the petitioner is guilty of cruelty and ill-treatment and also desertion. According to the respondent, she never deserted. The petitioner, and she is willing to live with him, provided she is treated kindly and affectionately by the petitioner by setting up a separate residence. However, he never cared for the health and welfare of the respondent or the children. Hence the petitioner is not entitled to have a decree for judicial separation as claimed in the petition The petition is mala fide and made with ulterior motives. There is no cause of action for filing this petition and the same deserves to be dismissed.

(3.) On the above pleadings, the learned single Judge framed the following issues:-