JUDGMENT

S.S Subramani, J.

The respondent in O.P No. 48 of 1982, on the file of Additional District Judge, Pondicherry, is the appellant before us.

2. The parties hereinafter will be referred to as they are arrayed in the Original Petition.

3. The Original Petition was filed by the husband for divorce under S. 13(1-b) of Hindu Marriage Act, on the following allegations:

The marriage between the parties took place on 19.6.1975, and, at that time, the petitioner was working in the Railways as a clerk and he was residing with his parents' at Pondicherry. Even at that time, the respondent (wife) was working as a School Teacher. Even now both are employed at different places. It is said that after marriage, the parties lived as husband and wife at Pondicherry till September, 1976, and even during that time, the respondent frequently used to go to her parents' house under some pretext or other. It is further averred that the petitioner used to treat the wife with utmost affection, love and consideration, and in spite of all his efforts, the wife was behaving in a reckless manner and was not discharging her marital duties properly. She often used to stay with her parents for some reason or other, without intimation whatsoever. It is said that the respondent was frequently quarrelling with everyone including the petitioner, and, under the guise of a quarrel, she used to leave to her parents' house. It is said that the wife who was working as a school Teacher, was earning more than the husband, and that was the reason for disrespecting the husband. In or about the second month of 1976, the respondent, without any reasonable cause, left the matrimonial home and refused to come back, and, in May 1977, a notice was issued, and thereafter, due to persuasion and mediation, the parties settled the matter, and the respondent came to the matrimonial home. In December 1977, the wife went to her parents promising to come back within a week. However, she did not return as promised, and in spite of great efforts, she refused to cohabit with the petitioner, and all efforts made by him were of no avail. It is said that the petitioner went to the School and requested the respondent (wife) to join him, and at that time, with the utmost contempt, she refused to cohabit with him. It is said that from December 1977, the wife has deserted him. In March 1978, the wife gave birth to a male child, and this fact was not even informed to the petitioner or his parents. It is said that the conduct of the wife in living separately from December 1977 amounts to desertion, and in spite of reconciliation, she refused to join him. It is, therefore, prayed that, in view of the conduct of the respondent, a decree for divorce may be passed, terminating the marital-relationship.

4. In the counter affidavit filed by the respondent (wife), she admitted the legal relationship between the parties and also the birth of the child. It is her defence that in the matrimonial home, she was not allowed to live peacefully, and in view of the harassment from her mother-in-law, she wanted the petitioner to live separately, and he did not make any attempt to protect her. According to her, she is not very particular about staying with her parents, but she only pleaded that it is not possible for her to live peacefully with him in the matrimonial house due to constant quarrel. For mental peace, she had to live separately from her husband. She also said that even the husband's brother, though married, could not live with his parents in view of the conduct of the mother-in-law. She had no complaint against her husband, and, according to her, he is very much affectionate towards her, and she has no intention to put an end to the marital relationship, and if at all she had to live separately, it was only because the husband did not give her necessary protection when his mother used to ill-treat her. It is also said that she did not go to her parents' house on her own, but she was driven out by her mother-in-law. She prayed for dismissal of the petition.

5. Before the trial court, petitioner got himself examined as P.W 1, and Exs. P-1 to P-6 were marked on his side. On the side of the respondent, she got herself examined as R.W 1, and also examined an independent witness as R.W 2. The respondent marked Exs. R-1 to R-4 on her side.

6. After evaluating the entire evidence, the trial court came to the conclusion that there was no desertion. It also found that it was due to the atmosphere in the house, the wife had to live separately. It also found that it was the mother-in-law, who used to tease the respondent every now and then, and the petitioner did not take any steps to make his wife happy in the conjugal home. One or two instances spoken to by the wife regarding the attitude of the mother-in-law were also taken into consideration by the trial court for coming to the conclusion that the matrimonial home was not a happy place for the respondent. The Original Petition was, therefore, dismissed.

7. Against the judgment of the trial court, the petitioner (husband) preferred C.M.A No. 76 of 1985, on the file of this Court. The learned Judge reversed the finding and granted divorce. The learned judge came to the conclusion that the case put forward by the wife, namely, teasing by mother-in-law was not proved, and, therefore, desertion was made out. A decree for divorce was granted. It is against the said judgment of the learned judge, this Letters Patent Appeal is filed by the wife.

8. Before we proceed to consider the evidence in this case, we may state that we also made an attempt to bring about a reconciliation between the parties. Parties were asked to be present before us along with their son who has now completed 19 years of age. Even though the wife expressed her willingness to go with her husband unconditionally, the husband was reluctant to take her. The wife also said that she has constructed a new house and that the same is lying vacant. She also said that she has no objection to go with her husband and live with him in his house, but he must take her back to his house. The husband was reluctant even to give a straight answer, and when we pressed him for an answer, he only said that he wanted to consult his parents'. We adjourned the case by a day since we wanted to give one more opportunity to the parties to make a reconciliation. Learned counsel appearing for the parties were also present before us. Learned counsel for the respondent (wife) expressed the wife's continued readiness to go with the husband, but they had not heard anything from the husband. In view of the refusal by the husband to have a reconciliation, we had no other alternative, except to dispose of this appeal on merits.

9. The only question that has to be considered in this Appeal is whether sufficient grounds have been made out for granting a decree for divorce.

10. S. 13(1-b) reads thus:—

“Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a 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.”

There is an Explanation added under Act 68 of 1976. It reads thus:—

“In this sub-section, the expression “desertion” means the 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, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.”

11. A separate living by a spouse against the wish or consent of the other spouse will not amount to desertion if there is a reasonable cause.

12. From the averments in the petition, it is seen that the petitioner is very much affectionate towards his wife and that he is a loving husband. In the counter statement, the wife has also no allegation against the husband. She also says that she was being treated with love and affection. If this is the admitted relationship between the parties, under normal circumstances, the parties will not think of separating themselves. There must be some reason for the wife to live separately.

13. Even before marriage, the wife was employed as a teacher, and it was after knowing that she was employed, the marriage was fixed.

14. It is alleged in the petition that on 17.2.1977, the respondent (wife) went to her parents' house, promising to come back within a week and that she did not return thereafter. It is not disputed that on 31.3.1978, the appellant gave birth to a male child and that child is now aged 19, and he was also present before us at the time of our attempted reconciliation. Even though that is the allegation in the petition, when P.W 1, was examined, he said:—

“… She lived with me till December 1977. My wife was pregnant at that time. Certain religious ceremonies had to be performed in her parents' house. The mother of the respondent came to my house and wanted to take the respondent on a day which was inauspicious and my mother agreed to send her the next morning. But the mother of the respondent got angry and went in a huff. My mother took the respondent and left her near her house asking her to return after a week's time. ….”

From this statement in chief-examination, it is clear that the wife, who was pregnant, had to be in her parents' house and she was taken by none other than her mother-in-law. From his (husband's) own statement, one thing is clear, namely, that the mother-in-law did not take the respondent to her parents' house, but left her near her house.” That shows the relationship between the parties. This statement of the husband is not admitted by the wife. She has a different version. According to her, on the day of the religious ceremony (Seemantham day), her husband and mother-in-law came to her house, but, standing on the road, they scolded them. The husband alone came inside the house. He insulted her, and then both the husband and mother-in-law went away, and, in fact, her mother had lodged a police complaint against the mother-in-law.

15. The relationship between the in-laws and the wife is not smooth is clear from the admission of both parties. Along with this admitted case, the wife has spoken as to how she was insulted or harassed by her in-laws. According to her, the mother-in-law always wanted to get some amount from her parents and also wanted her to take loan from Provident Fund and from Bank. She also used to demand for better dowry. It is also stated by her that she was taken as a daughter-in-law only because she was employed, which means that the mother-in-law was interested only in her salary and not in her life. She also asserts that between herself and her husband, there was no ill-feeling and that they were loving each other. They also liked the company of one another. But, in view of the atmosphere in the house, there could not be a peaceful married life. It is also her case that the husband did not give her necessary protection in time. It is her grievance that the petitioner did not live upto her expectations as a husband.

16. One more statement may be of importance. In her counter, even though she accused her mother-in-law, by the time she was examined, even though she repeated the averments regarding harassment by the mother-in-law, she went to the extent of saying that as on that day she had no objection in the mother-in-law living with her husband. What she said was that she was not prepared to straightway go to her mother-in-law's house and that she has no disrespect to her or to her father-in-law. The trial court which had the opportunity to see the witness, came to the conclusion that the case put forward by the wife has to be accepted. The trial court was also of the view that if the relationship between the husband and wife was smooth, normally the spouses will only think of living together, and that there must be some reason behind it, if they had chosen to live separately. In view of the admission by the husband himself, it is clear that there must be some truth in what the wife has said in her counter and evidence. That is, she is not happy in the matrimonial home. In appeal, the learned judge has taken the statement of the wife where she has stated that she has no objection in the mother-in-law staying with her husband, as a circumstance to think that the alleged harassment by the mother-in-law cannot be true. We must understand that by the time the respondent (wife) was examined, she also might have reconciled herself about her fate and would have become prepared to undergo the difficulties which she was facing till then. Even after all the harassment, it she is prepared to live with her husband along with the mother-in-law, that only shows her intention not to put an end to the marital life. Merely because of that statement, the learned judge should not have disbelieved her, without taking into consideration the evidence of the husband. We must also see that in appeal, the appellate judge did not have the opportunity to appreciate the demeanour of the witness, and when the trial judge had that opportunity and had believed the evidence of the wife, that should not be lightly interfered with.

17. Learned counsel for the respondent submitted that the demand for dowry or demand for money is not pleaded in the counter and, therefore, it is an exaggerated statement. We cannot agree with the said submission. In her evidence she only said that the treatment meted out to her by the mother of the petitioner was so cruel that the respondent felt unsafe to live with them, and she persuaded the husband to live separately so that she can be happy with him. According to us, the said statement made by her in the witness box is only a narration of the cruelty or suffering experienced by her at the hands of the in-laws.

18. In ‘Hindu Law’ by N.R Raghavachariar Eighth Edition (1987), at page 697, the learned author says thus:—

“Desertion is not to be tested by merely ascertaining which party left the matrimonial home first, if one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion. .. …”

According to us, the said passage is applicable to the facts of this case. If the wife who is expecting a happy life is disappointed by the conduct of the respondent, in not providing necessary protection, and she is compelled to leave the matrimonial house, it will not amount to desertion, but the person responsible is the husband himself.

19. The other question is, whether the wife has explained why she had to live separately with no intention to put an end to the marital relationship. In such case, we have to consider whether there is reasonable cause and therefore, the separate living will amount to desertion.

20. In A.I.R 1971 Orissa 295 (Kashinath Sahu v. Smt. devi and Others), the question was, whether the wife was entitled to get separate maintenance. The allegation was that the atmosphere in the house was not conducive for a happy married life, though she did not allege anything against her husband. Her allegation was that the husband's mother used to treat her cruelly. While considering the same, it was held by the court thus:—

“It is no answer to a charge of cruelty levelled by the wife to say that it was not the husband himself but his mother who had treated her with cruelty. It is clearly the responsibility of the husband to protect his wife from the unpleasantness of his relatives and to make suitable provisions for her to live with him in privacy.”

21. Even though that case arose under Hindu Adoptions and Maintenance Act, the same is applicable to the instant case, when we consider the question of desertion. If the spouse is living separately for good reasons, and at the same time, wants to maintain the marital relationship, it will not amount to desertion in law.

22. In A.I.R 1979 Orissa 85 (Rabindranath Barik v. Smt. Pramila Bala Barik), it was a case of restitution of conjugal rights. The wife pleaded that there was habitual nagging by her in-laws. She had no complaint against her husband. In the said decision, a Bench of that High Court, while stating that ‘cruelty’ has not been defined in the Hindu Marriage Act, has summed up the observation of Lord Stowell in Evans v. Evans. (1790) 1 Hag Con 35 which reads as follows:—

“What is cruelty? In the present case it is hardly necessary for me to define it, because the facts here complained of are such as fall within the most restricted definition of cruelty; they affect not only the comfort, but they affect the health and even the life of the party. This, however, must be understood, that it is the duty of the courts to keep the rule extremely strict. The cause must be grave and weighty, and such as to show an absolute impossibility that the duties of married life can be discharged. In a state of personal danger no duties can be discharged; for, the duty of self-preservation must take place before the duties of marriage which are secondary both in commencement and obligation; but what falls short of this is with great caution to be admitted.”.

(Emphasis supplied)

The reasoning of the learned judges in that case equally applies to the facts of this case. When the wife is not in a position to preserve herself, the question of her discharging the marital duty does not arise. We must also note that to constitute desertion, there must be an intention to put an end to the marital relationship.

23. In Mayne's ‘Hindu Law & Usage’ - 13th Edition (1991), at page 238, the learned author has said thus:—

“Mere physical separation without necessary intention to put an end to cohabitation permanently would not amount to desertion. Where both the spouses are employed and working at different places without proof of necessary intention to put an end to cohabitation there is no desertion. Mere refusal or neglect to perform one or more acts of marital obligations would not amount to desertion so long as the intention to cohabit as husband and wife continues.”

24. Learned counsel for the respondent cited before us the decisions reported in A.I.R 1967 Madhya Pradesh (Krishnabai v. Punam Chand), A.I.R 1982 Smt. Indu Gupta… v. Shri Rajeshwar Pershad….) and A.I.R 1986 Delhi 460 (Krishnan Lal v. Smt. Nitu). In cases concerning marital relationship, precedent will be of little importance. For, that depends upon the facts and circumstances of each case. The question that has to be considered in a case concerning marital relationship is, whether this husband and this wife can continue their relationship or not. It is their personal relationship and their personal sufferings that are pleaded and sought to be proved before court. We can only apply the legal principles on the basis of statute.

25. The conduct of the husband even before us also supports the case put forward by the respondent (wife), for, the husband could not take a decision by his own, even though his son is now aged 19. He wants the consent of his parents to take his wife back.

26. Learned counsel for the petitioner (husband) submitted that it is now more than 18 years since the parties are living separately and there is no purpose in continuing the relationship. According to him, the marital relationship between the parties has become irretrievable, and, for that reason, the judgment of the learned judge has to be confirmed.

27. We cannot agree with the said submission. When the petitioner has failed in the discharge of his marital obligations, he cannot exploit his own wrong. S. 23 of the Hindu Marriage Act expressly provides bar of granting any such relief. Further, both the parties have now passed 50 years of age, and it is in their old age the dependency on one another becomes a necessity, especially when we take the background that both of them loved each other, and their son is now aged 19, who was also questioned by us. The boy was also over anxious to have his mother and father united. The age of the in-laws is also now past 80, and we do not think that the strained relationship between the mother-in-law and daughter-in-law will be there even now.

28. In the result, the appeal is allowed. We set aside the judgment of the learned judge and restore the judgment and decree of the trial court by dismissing the petition for divorce. We direct the parties to suffer their own costs.

KA/RR/VCS