A GANESAN Vs. G GNANASOUNDARI

JUDGEMENT

(1.) THE appellant is the husband of the respondent. He filed OP 46/81 in the Court of Sub Judge of Sivagangai under Section 13 of the Hindu Marriage Act for divorce on the ground that his wife has deserted him and that she is living in adultery. His case is that they got married on 8.9.1967. THEreafter, they lived as husband and wife for sometime. In January 1968, she went to her parents' house and did not come back. All the efforts taken by him to make her to come and live in the husband's home proved futile. On 20.2.1972, he sent Ex. P1 notice calling upon her to come and reside with him. Ex. P2 is the reply notice dated 25.2.1975. THE subsequent endeavour made by the appellant to get his wife back also did not end in success. She began to lead an immoral life also. So on 5.9.1981, he sent Ex. P3 the second notice to her. Ex. P4 is her reply dated 8.9.1981. THE wife resisted the action stating that immediately after the marriage, her husband got from her 15 sovereigns worth of jewels for the avowed purpose of building a new house. THE family of the appellant is a big one. THE respondent requested her mother-in-law either to give back the jewels or convey the house in her name. On that account, there were frequent quarrels between them. THE appellant beat and ill-treated her. So she left for her mother's place and resided there for some time. When she came back and began to live with her husband, the appellant again started illtreating her. In this manner, her life of misery became an unending story and ultimately, one day when she was bold enough to ask her mother-in-law to return her jewels she was beaten and driven out of the house. THE adultery alleged is not true.

(2.) THE trial court did not believe the claim of the appellant that his wife is leading an immoral life. However, it accepted his contention that she has deserted him without any justifiable reason and was residing with her parents for more than 13 years and accordingly granted a decree of divorce. THE wife took up the matter in appeal before the District Court, Ramnad in CMA No. 43/82. Learned District Judge allowed the appeal set aside the decree of divorce and dismissed the application with costs throughout. This CMSA, is directed against the said order.

(3.) UNDER Section 13(1)(b) of the Hindu Marriage Act, any marriage solemnised whether before or after the commencement of that Act may on the petition presented by either the husband or the wife be dissolved by decree of divorce on the ground that the other party has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Explanation to Section 13 of the Act states that desertion means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party which includes wilful neglect of the petitioner by the other party to the marriage. The expression "desertion" in the context of matrimonial law represents a legal conception and is one very difficult to define. The essence of desertion is the forsaking and abandonment of one spouse by the other without reasonable cause and without the consent or against the wish of the other. It is a well established principle that the spouse who withdraws from cohabitation for what is described as a good cause, such as cruelty, cannot be said to be guilty of desertion. For, in such a case, it is the conduct of the offending spouse that is the cause of separation and the spouse who leaves the matrimonial home cannot be said to have acted from any animus deserendi and it is also well settled that the legal burden throughout the case is on the petitioner to prove that the wife deserted him without cause. It is significant to note that in Ex. P3 notice dated 5.9.1991 the appellant has attributed unchastity to his wife and both the courts below have found that there is no substance in this allegation. Once the husband has chosen to assail the character of his wife it amounts to mental cruelty in law which affords reasonable ground for the wife to live away from him. Since it cannot be said in the present case that the respondent has withdrawn from the company of her husband without reasonable cause, the lower appellate Court has rightly set aside the order of the trial court granting a decree of divorce on the ground of desertion. I, therefore, find no merit in this Civil Miscellaneous Second Appeal.