R. Balasubramanian
Vs. Smt. Vijayalakshmi Balasumbramanian [1999] INSC 261 (11 August 1999)
D.P.Wadhwa,
M.BB.Shah D.P. Wadhwa, J.
This
is husband's appeal. He filed a petition for divorce against respondent-wife
under Section 13 of the Hindu Marriage Act, 1955 ('Act' for short) on the
grounds of cruelty and desertion [Section 13(i-a) and 13(i-b)]. He succeeded in
the family court to the extent that he was instead granted a decree of judicial
separation under Section 13-A of the Act. Against the judgment of the family
court wife filed an appeal in the High Court of Judicature at Madras. A Division Bench of the High Court
by impugned judgment dated December 19, 1996
allowed the appeal and dismissed the petition of the husband on both the
grounds of cruelty and desertion. Aggrieved husband has now come to this Court
after obtaining leave to appeal.
A
marriage was solemnised between the parties in accordance with Hindu rites on July 6, 1969. A son was born to them on February 12, 1971 and a daughter on May 19, 1975.
Husband
alleged that during all this period behaviour of the wife was cruel towards
him. She suspected that he was having extra marital relations with his junior
woman advocate. Husband is an income- tax practitioner. Wife also suspected
that he was having illicit relation with another woman, wife of an acquaintance
of the respondent.
Husband
also alleged that wife used to behave in erratic fashion and would consume
overdose of sleeping pills. She also once threatened to commit suicide. All
this wife did only to harass him. She would also pick up quarrels with the
husband without any provocation on his part. Husband also complained that he
was doing well in the profession and never wanted his wife to take up a job
which she did against his wishes. On July 6, 1979 the couple celebrated their tenth
wedding anniversary. Husband then said that he was shocked when his wife told
him that she was pregnant. He said this could not be so as he had ceased
marital relation with her since June, 1977. He then said that wife, the
respondent, left the matrimonial home on September 10, 1979 leaving the two minor children to
his love and care. On verification husband found that his wife had gone to her parents
house and since then she has been living there. She gave birth to a girl on March 21, 1980 at her parents house, which,
according to the husband, is a mystery to him. He said conduct and character of
the wife was not above board.
Wife
denied all these allegations and rather alleged cruel behaviour on the part of
the husband. She said she took up the job to escape constant nagging by her
husband.
She
said she left for her parents house to perform certain Pooja and did not take
her two children with her as they were school going. She denied that there was
no marital relation between her and her husband. She said she informed her
husband in July, 1979 itself that after cohabitation she had skipped her
periods. She denied that she left the house of her husband without his
knowledge. She said it was only after taking his permission. She said the third
child, the girl named Kamakshi, is born to her of her husband and she said that
she was willing to undergo all scientific tests to prove that the appellant was
the father of her child Kamakshi. She said she was always prepared to live with
her husband and was even anxious for that for the sake of her children. She
said the allegation of husband against here moral character is itself a cruelty
entitling her to live separately from her husband and also to claim
maintenance.
Mr. A.B.
Rohatgi, learned counsel appearing for the husband submitted that as far as the
allegation of adultery against respondent-wife is concerned he is not going to
press. That may be good of him but the fact remains that the allegation that
the wife had sexual intercourse with a person other than the husband is a
serious allegation against the wife and shows the cruel conduct of the husband
entitling the wife to seek relief against him under the Act or otherwise. It
was submitted that on July
6, 1979 parties celebrated
their tenth wedding anniversary. That would show that both were living together
and it is apparent that the husband has condoned the cruelty, if any, alleged
by him against the wife. Husband has not gone to see his third child Kamakshi
since her birth. High Court has rejected his plea that he ever made attempt to
bring his wife and the daughter, who was born to her at her parents house. High
Court has considered pleadings and the evidence on record threadbare and came
to the conclusion that the case of cruelty and desertion set up by the husband
has not been proved. We agree with the High Court and rather we find that it is
husband, who is in wrong.
We,
therefore, uphold the order of the Division Bench of the High Court and dismiss
the appeal with costs. Petition seeking divorce filed by the appellant is
dismissed.
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