R P JAYAKUMAR Vs. R JAYANTHI

JUDGEMENT

(1.) THIS appeal is by the petitioner who sought an order of dissolution of the marriage between the appellant and the respondent, and for granting a decree of divorce under Section 13(1)(i-b) of the Hindu Marriage Act, 1955.

(2.) IT is seen that the marriage between the appellant and the respondent was solemnized according to the Hindu rites on 17.1.1994. The parties herein lived together till March 1994. IT is stated that even during that period, there was no compatibility between them; that in the meanwhile, the respondent conceived and thereafter moved to her parents' house where she delivered a female child on 18.10.1994. He stated that he had not met the respondent wife thereafterwards for the past six years and the marriage had broken totally. The appellant alleged that the respondent had deserted the appellant and he had offered to take custody of the daughter, to which the respondent refused. Since there was no chance of settling the differences between the parties, the appellant had approached the Court for the relief as stated above.

(3.) ON 22nd July 2002, the Principal Family Court dismissed the petition for divorce on the ground that the appellant had miserably failed to prove the factum of desertion. A perusal of the order shows that the appellant was examined as P.W.1. ON the side of the respondent, she was examined as R.W.1 and Dr.Balakrishnan was examined as R.W.2. Referring to the contention of the appellant that the respondent left the matrimonial home on 27.3.1994 and that she had deserted the appellant for the past six years, the Court below pointed out to the examination in chief wherein, P.W.1 deposed that after delivery, the respondent returned back with the child and in January 1998, she went to her parental home. Referring to the cross-examination, the learned Judge pointed out that the respondent had stayed with the appellant since March, 1995. However, he refused to give any reason for not talking to her or not showing his interest in her. Consequently, the Court below held that he had not mentioned the correct date of desertion. The Court below referred to the decision reported (2002) 2 SCC 73 (Savitri Pandey Vs. Prem Chandra Pandey) on the question of desertion that two essential claims must be proved by a person pleading desertion, one is the factum of separation and the other is the intention to bring cohabitation permanently to an end. The Court below found that the appellant had stated that he was not interested in his marriage since he had married out of compulsion from his parents and that there was no compatibility. In the cross-examination, the appellant had stated that he had no interest in his wife. Learned Judge also pointed out that the appellant had not shown any material to substantiate his allegation that the respondent had intentionally deserted him and left the matrimonial home. It is also relevant to note that the appellant had stated that he had not seen the child nor does he know the date of birth of the child. Learned Judge also found that the appellant had not taken any step to bring the respondent back to her matrimonial home. Taking note of the evidence of P.W.1, the Court below held that the appellant had not proved that the respondent had deserted the appellant. ON the other hand, going by the evidence of the respondent, it held that the respondent had expressed her willingness to live with the appellant. Hence, the Court below found that there was no motive for the respondent to desert the husband. Further, she had taken steps before the Tamil Nadu Legal Services Authority and that an Advocate also visited the appellant's house, wherein, he had sought for time, but had later on proceeded with the petition for divorce. Hence, the conclusion was that the appellant himself had deserted the wife. Referring to the decisions reported in Air 2002 Madras 156 (K. Palanisamy Vs. Samiathal) And AIR 2002 SC 88 (Adhyatma Bhattar Alwar Vs. Adhyatma Bhattar Sri Devi), the Court below held that the intention to bring the cohabitation permanently to an end was not proved. The Court below pointed out that it is the appellant who had come forward with a petition for divorce on the ground of desertion and that he alone was to be blamed for the state of affairs. Consequently, the Court below held that he could not take advantage of his own wrong doing. Ultimately, the Court below rejected the plea for divorce.