(Prayer: Appeal under section------ against orders

IA NO: 1 OF 2007(FCAMP 303 OF 2007

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased fix an early date for hearing the FCA)

A. Hari Haranadha Sarma, J.

Introductory:-

1. The petitioner in O.P.No.49 of 2004 on the file of the Principal Judge, Family Court-cum-IV Additional District & Sessions Judge, Vijayawada (for short “the Family Court”), filed the present appeal questioning the order and decree dated 20.07.2007 passed by the Family Court, whereunder the petition filed by the husband under Section 13(1)(ia)(ib) of the Hindu Marriage Act, 1955 seeking dissolution of marriage on the ground of desertion was dismissed.

2. For the sake of convenience, the parties will be hereinafter referred to as the petitioner and the respondent with reference to their status before the Family Court (O.P.No.49 of 2004).

Case of the Petitioner:

3(i). The petitioner married the respondent on 22.09.1990 after the death of his 1st wife who is none other than the elder sister of the respondent and petitioner and respondent lived together at Vallabhapuram village in a rented house belonging to one Sri Venkata Rama Reddy from the year 1994 to 1996. On 26.05.2001, the respondent left the matrimonial home along with their minor child Kavitha and went to her parental home at Madras without informing him or his parents and that, from then onwards, she has been residing with her parents.

                  (ii). The petitioner got issued a legal notice under Ex.A1, which was received by the respondent, but she did not return to the matrimonial home. Alleging that the respondent deserted him without reasonable cause and failed to discharge her marital obligations, he has initiated the present proceedings seeking dissolution of marriage.

Case of the Respondent:

4(i). The respondent denied the allegation of desertion. She contended that on 24.05.2003, her parents came to Vijayawada and the petitioner himself sent her along with them to Madras for a short stay, assuring that he would come and take her back.

                  (ii). She further stated that the petitioner, instead of making efforts for taking back, issued a false legal notice dated 23.07.2003, to which she gave a reply dated 22.08.2003 expressing her willingness to join him at Vijayawada and that she never deserted him as alleged.

                  (iii). It is also contended that the petitioner did not make any effort for mediation or restitution of conjugal rights for more than two years after the alleged desertion but the petition was filed only to pressurize her and her parents in respect of custody of child.

Findings of the Family Court:

5(i). The petitioner failed to prove that the respondent deserted him. The petitioner did not take any steps for conciliation, mediation or restitution of conjugal rights.

                  (ii). If there was desertion, the petitioner would have taken proper legal steps to bring back the respondent. His silence and inaction for a long time clearly negatives his plea.

                  (iii). The petitioner is not entitled to a decree of divorce on the ground of desertion and accordingly the petition is liable to be dismissed.

Arguments in the Appeal:

For the appellant (Husband):

6(i). The Family Court erred in dismissing the petition despite clear evidence of desertion by the respondent.

                  (ii). The respondent left the matrimonial home along with the minor child without any justification and refused to join the appellant in spite of issuance of legal notice. Therefore, desertion is proved.

                  (iii). The conduct of the respondent clearly establishes her intention to quit the matrimonial relationship.

                  (iv). There is no representation on behalf of the respondent (wife). The respondent did not choose to prosecute this appeal properly.

                  (v). Since there is no representation for her, it shall be taken that the appellant’s case is admitted by the respondent and hence the appeal is liable to be allowed.

7. There is no representation for respondent. After providing reasonable opportunity and after posting the matter under the caption “for orders” for more than three times, learned counsel for the appellant was heard and the matter was reserved for judgment.

8. Perused the impugned order, grounds urged in the memorandum of appeal and the record carefully. Thoughtful consideration is given to the arguments advanced on behalf of the appellant.

9. The points that arise for determination in this appeal are:

                  1) Whether the impugned order and decree dated 20.07.2007 passed by the Family Court in O.P.No.49 of 2004 dismissing the application filed by the appellant are sustainable in law and on facts?

                  2) What is the result of the appeal?

Point No.1:

Relevance of Absence of Respondent:

10(i). The contention of the appellant is that the respondent did not choose to contest the appeal. Therefore, the appeal can be allowed.

                  (ii). This appeal is filed under Section 19 of the Family Courts Act. The language of the said provision is not indicating that in the absence of contest of the respondent, the appeal shall be allowed.

                  (iii). The applicability of the provisions of the CPC to the proceedings in terms of the Family Courts Act is clear unless they are repugnant. In the case of repugnancy, the provisions of the Family Courts Act will have overriding effect as per Section 20 of the Family Courts Act, 1984.

                  (iv). Order XLI Rule 17(2) CPC provides that in the absence of the respondent, when the appellant is present, the appellant may be heard ex parte.

                  (v). The appeal cannot be allowed solely on the ground of respondent’s absence, the appellant must demonstrate sufficient cause for reversal.

                  (vi). It is relevant to note that the scheme of Order XLI Rule 17(2), Order XLI Rule 19 and Order XLI Rule 20 CPC which provide for ex parte hearing and restoration of appeal etc.

                  (vii). Ex parte hearing does not mean automatic acceptance of the case of the party before the Court. The Court has to consider the matter on merits. Therefore, the contention that the absence of the respondent is sufficient to allow the appeal is not tenable.

Analysis, Reasons and Findings:

11. The relationship between the parties is not in dispute. The respondent is none other than the sister of petitioner’s 1st wife. So, good and bad are known to both. The marriage between the petitioner and respondent taken place on 22.09.1990. The petitioner is alleging desertion on 26.05.2001, which suggests that they lived together for about a decade. Details of their stays at different places are asserted by the respondent. The contention of petitioner is that he has got issued Ex.A1-legal notice dated 23.07.2003. Ex.A2 is the acknowledgment evidencing service of the same. Reply was got issued by the respondent on 22.08.2003. The allegations in Ex.A1-legal notice show that there are issues, such as the respondent (wife) was frequently moving to the parents’ house and that the respondent was harassing the petitioner and his parents physically and mentally. Respondent left to the parents’ house without consent of the petitioner and finally in Ex.A1, the petitioner has asked the respondent to join with him along with daughter indicating in the notice that appropriate relief will be sought before the Court in the event of non-compliance. The petitioner and his first wife are blessed with a daughter and his first wife died soon after the birth of the child.

12. Respondent asserted in her counter that she has got issued reply indicating that the petitioner himself asked the parents of respondent to take her to her parental home for 10 to 15 days, promising to get her back. But, notice was issued without any basis with false allegations and that she has asserted in her reply that she is ready to join with the petitioner at Vijayawada to lead matrimonial life, but petitioner himself did not take her back.

13. What happened between the reply notice and the filing of legal proceedings for divorce is not indicated either in pleadings or in the evidence of the petitioner. The petitioner has admitted that in her reply and in the counter the respondent has agreed to join with him. A specific suggestion was given to petitioner that since his minor daughter refused to stay with him, he filed the case against the respondent (wife).

14. Further, he has stated in cross-examination that he is not interested in leading matrimonial life with respondent. This indicates that the petitioner is not interested in leading matrimonial life. During re-examination, he has stated that in the legal notice he has asked the respondent to join him with an alternative for dissolution of marriage. During recross-examination, it was suggested to him that the respondent offered her willingness to join but the petitioner did not respond, he has denied the suggestion. When the legal notice is for restitution of conjugal rights and the legal proceedings are initiated for restitution of conjugal rights, the foundation in the legal notice can be corroborating circumstances as to the intention of a party. But context in this case is different. The petitioner-husband is not clear in his legal notice-Ex.A1 that he intends to have the dissolution of marriage. Per contra, it suggests that he intends to have the matrimonial home restored.

15. Respondent as R.W.1 stated about the marriage and that she followed the petitioner to various places to which he was transferred. She asserted in her reply notice itself that she is ready to join with the petitioner. She has further asserted in her affidavit that she is always ready to join with the petitioner and lead matrimonial life. During cross-examination of R.W.1 (wife), it is elicited that she filed a case for maintenance before the Family Court at Chennai. She has explained that a statement said to have been made before the Court that she is prepared to give divorce, as the same was moved in angry mode. It was suggested to respondent during cross examination that she suppressed the fact she is unable to beget the child, which she has denied. It was also suggested to her that she was not extending services to her in-laws (parents of the petitioner) and that she did not prepare food for her husband.

16. The petitioner sought dissolution of marriage on the ground of desertion by the respondent. Whether the desertion was voluntary or for justified cause is to be examined. The petitioner sought for restitution of matrimonial home in the legal notice which suggests that he was interested to continue the matrimonial life with the respondent as on the date of Ex.A1. The respondent stated on oath, during evidence that she is ready to join with her husband at any time. Whether issuance of a legal notice by petitioner is sufficient to show that there was voluntary desertion on the part of the respondent is an important question. Desertion must indicate abandonment of marriage. Whether there is animus deserendi on the part of the wife or there is any contribution of husband requires examination. Whether this is a case of mere separation or there is intention to abandon the relationship between the parties shall be seen.

17. The evidence and contention of the petitioner / husband / appellant indicate that while alleging desertion, he asked restitution of matrimonial home in the legal notice but in the next stage he has alleged that the respondent ill- treated him and his parents, she did not cook food, she was frequently going to her parental home and she cannot beget children. The allegations like failure to beget children, ill-treatment or cruelty from the end of the wife, when seen in the light of the husband seeking the wife to join matrimonial home creates any amount of clouds and doubt over such allegations and improbabilizes the truth thereof. When he seeks for restitution of matrimonial home, it indicates his willingness to continue matrimonial life. The respondent / wife in her reply notice and on oath, consented to join with him in writing and on oath before the Court. Whereas the petitioner / husband / appellant has stated on oath that she is not interested to lead matrimonial life. Then the burden to show that there are legally justified grounds for such refusal and the legal remedies for dissolution of marriage and divorce must be shown with proper evidence. Every separate living for the reason of ordinary wear and tear of married life cannot be considered as ground constituting desertion or cruelty etc. The facts and evidence in case on hand are not indicating voluntary desertion on the part of the respondent-wife. Therefore, it can be found that the petitioner failed to prove desertion on the part of the respondent-wife and that the findings of the Family Court under the impugned order dated 20.07.2007 are reasonable and rational. Consequently, the impugned order does not warrant any interference. Point framed is answered accordingly.

Point No.2:

18. In the result, the appeal is dismissed. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.