SIrARVANANDA, J.—Muthukumaraaamy v. Parameshwary
1076 Present : Thamotheram, J., Sharvananda, J., and Ratwatte J.
K.MUTHUKUMARASAMY, Appellant, and PARAMESHWARY,.
S. C. 416/73 (F)—D. C. Jaffna, 1476/D
-Termination of desertion—Offer of return by deserting spouse—Whether deserted spouse could refuse re-instatement—Effect ofsuch refusal.
Termination of malicious desertion can take place by a superveninganimus revertendi, coupled with a bona fide approach to the desertedspouse with a view to resumption of life together. Where thedeserting spouse makes a genuine offer to return to the matrimonialhome with a view to resumption of life together, the deserted spousecannot lawfully refuse re-instatement. A deserted spouse mustalways, until presentation of his plaint, affirm the marriage and beready to take back the deserting spouse.«
.A.PPEAL FROM a judgment of the District Court, Jaffna.
C. Ranganathan with N. Senanayake, Rohan Perera andG. Bakmeewewa for the Plaintiff-Appellant.
P. Navaratnarajah with K. Sivanathan and S. Mandules'waran$for the Defendant-Respondent.
Cur. adv. vult.
May 24, 1976. Sharvananda, J.—
The plaintiff-appellant instituted this action on 4th May, 1967,for a divorce from his wife, the defendant-respondent, on the-ground of her malicious desertion.
SHAR VANAXDA, J.—Muthukumarasamy v. Parameshivary
The marriage of the plaintiff with the defendant was regis-tered on 22nd May, 1966, and the marriage was solemnizedaccording to Hindu rites on 5th June, 1966. It was an. arrangedmarriage and the main motivation of the plaintiff agreeing tomarry the defendant was the fat dowry that she brought withher. The defendant, though she had lost her father early, wasbrought up by a rich uncle who had no children of his own. Thedefendant’s dowry was mainly provided by the uncle. Theevidence discloses that she was very much attached to her uncleand aunt who treated her as their own daughter. Her motheralso resided with them. Half the substantial house whichbelonged to that uncle was given by him as part of her dowry.That house was only about 200 yards away from the plaintiff’shouse where the plaintiff took her after the marriage to establishtheir matrimonial home. The matrimonial home lacked many ofthe amenities and comforts that were available to the defendantat her house. The affluent circumstances of the defendant con-trasted in a great measure with the indigent circumstances of theplaintiff. According to the plaintiff, the defendant never adaptedherself to her new habitat and was anxious to resume livingwith her people in her uncle’s house and had several times left forher uncle’s house without his permission. But, according to thedefendant, the plaintiff and his mother were interested in usingher as a lever to bring pressure on her doctor brother and heruncle to squeeze money to be siphoned off to the plaintiff’swidowed sister who was in indigent circumstances.
The plaintiff’s allegation is that the defendant, on 30th Decem-ber, 1966, finally left him without reasonable or probable causeand had thereafter refused to live with him. The caseproceeded to trial on the following issues : —
Did the defendant leave the plaintiff’s house on 30.12.66
in circumstances which amounted to a repudiation by
her of the marriage status ?
If so, is the plaintiff entitled to a—
decree for divorce ?
decree for the custody of the child ?
By her amended answer dated 23rd November, 1971, thedefendant set out elaborately her case for resisting the plaintiff’sallegation and, while praying for the dismissal of the plaintiff’saction, asked for judicial separation.
In the course of the trial, a reconciliation was provisionallyeffected on- 16th January, 1970, and the parties were persuadedto live together at the house of the plaintiff. But the reconcilia-tion was short-lived and the status quo ante of mutual recrimi-
SHARVA2STAJSTDA, J.—Muflmhumarasamy v. Farameahwary
nation was restored, one party blaming the other for the ultimatebreak-up. After trial, the learned District Judge, after an ex-haustive review of the evidence, held against the plaintiff and.dismissed the plaintiff’s action. He granted the defendant’sprayer for a judicial separation. The trial Judge formed a dimview of the plaintiff’s conduct and attributed the failure of themarriage to the plaintiff’s inconsiderateness and hard-hearted-ness in regarding her as a milch cow and not as a wife. Inappeal, Mr. Ranganathan made a valiant attempt to substantiatethe plaintiff’s allegations and to demonstrate the defendant’schildish preference of her home to the matrimonial home asirresponsible conduct unbecoming of a dutiful wife. He, veryrelevantly, stressed the wife’s matrimonial obligation to livewith her husband in the matrimonial home even though therebe short-comings and submitted that the defendant, knowing herhusband’s objections to her attachment to her home, never madea serious atempt to break away from her home and to live withhim in the matrimonial home provided by him, cht off from herpeople and doing his biddings. This contention postulatesabsolute and unquestioned obedience to the husband on the partof the wife, a submissiveness incompatible with the assertion ofany rights on her part. The law does not accord such a deroga-tory status to the wife. It does not regard the wife as her hus-band’s slave, though it requires her to comply with her husband’sreasonable requests and demands. Mr. Ranganathan furtherpointed out, with certain plausibility, to the discrepancies in theoriginal answer and the amended answer and to the improbabili-ties of the conduct ascribed to the plaintiff which, according to thedefendant, was responsible for frustrating the reconciliation re-corded on 16th January, 1970. On an examination of the plead-ings and evidence in the case, it does appear that certain of thefindings of the trial Judge against the plaintiff will have to berevised. But the ultimate decision on the appeal does not reston them. Fortunately, in the overall view of the admitted factsand circumstances of the case, it is not necessary to reach adetermination on every disputed issue of fact arising in the case.
One fact emerges out of the thicket of details. The plaintiffnever gave a chance for the marriage to get on its legs as itwere. A little consideration and understanding on his part forher natural predilection for her home might have saved themarriage from going to the rocks. At the time of the allegedseparation, things were not beyond repair. A little patiencemight have salvaged the marriage. But the plaintiff thought ofhis dignity and matrimonial rights only and exhibited – nounderstanding of his young wife’s eagerness to see and hobnobwith her people. In his view, to leave his house without his
SHARVANAMDA, J.-—Muthubumarasamy v. Parqrneshu-ary
express permission was a heinous matrimonial offence. Theplaintiff filed this action on 4th May, 1967. At the time the defen-dant was hedvy with child by the plaintiff. The child was born on16th July, 1967. In the course of the habeas corpus proceedingshad on 7th March, 1967, the defendant had stated that she couldnot resume life with the plaintiff “ in the present circumstances ’*(meaning in her state of pregnancy) and had opined that it wasdifficult to go and live with the plaintiff in his house. True thatshe declined the plaintiff’s offer when the plaintiff stated that hewas ready to provide all comforts and amenities suited to herstatus in a separate house. But one cannot spell in the refusal afinal repudiation by her of the marriage tie. The circumstancespoint to an innocent explanation. Nothing disastrous had befallenthe plaintiff to justify his rushing into the divorce Court on 4thMay, 1967. The door had not been irrevocably closed. The plaintiffcould well have afforded to await the birth of the child when thedifficulties envisaged by her would pass away and there wouldbe no excuse for her for refusing to rejoin him in a separatehouse. One cannot help concluding from the plaintiff’s unduehaste to rush into Court that his precipitate action was motivated,by his apprehension that the defendant would rejoin him afterthe confinement and that he wanted to forestall her. The timingof • the divorce action and the subsequent conduct andattitude of the plaintiff to his child confirms in abundant measurethe suspicion that the plaintiff had no regard for the matrimonialbond. He had behaved, as a complete stranger, to his first bomchild. He has no shred of affection for his son and no interest orconcern for him. He was so hard-hearted as not even to visitthe hospital even though the defendant had kept him informedof the child’s birth. He did not think, as father, to have thechild’s birth registered. Later even he has not manifested anylove for his child. This unnatural behaviour on the part of theplaintiff shows him in poor light.
According to the plaintiff, the defendant deserted him on 30tfirDecember. 1966, without reasonable or probable cause and Hadthereby definitely refused to live with the plaintiff. Itis true that the defendant did leave the plaintiff’s houseon 30th December, 1966. The question is :In what
circumstances did she leave ? Did she leave sine animo-revertendi ? Did she leave with the settled intention ofterminating her marriage with the plaintiff ? The plaintiff states :“ On 30.12.66 my wife left my house without informing anybody.I was at Jaffna at that time. I returned home at about 6 pm.When I came back I found that she had gone away. I looked outfor her for about one or two hours. When I left in the morningshe did not tell me that she was going to pay any visits on that
SHARVANANJDA, J.—Muthukumarasamy v. Parameshwary
day. She did not come back on the 1st. I saw her the next time onthe 11th January, 1967.” According to the plaintiff, nothingUntoward happened on the morning of 30th December, 1966, oron the preceding days between them to warrant her leaving himfor good. If one is to believe him, it is curious that though helooked for her in the village for one or two hours, he did not goto the defendant’s house which was only 200 yards away to verifywhether she had gone there, nor had he subsequently searched forher at her house till she came back voluntarily on 11th January,1967. Why did the plaintiff abstain from looking for her in themost probable place ? On the plaintiff’s evidence taken in itstotality there is nothing to suggest her final going away fromthe matrimonial home with the intention never to return.From the fact that she had gone to her mother’s place without theplaintiff’s prior sanction, one cannot spell out that she intendedto leave her husband for good. She might have beeen indiscreet,but she was not deserting her husband. Animus desertendicannot be attributed to her. Her letter dated 27.12.66 (P2),written only three days earlier, militates against such supposition.I shall reproduce the translation of P2 for a proper appreciationof her disposition. It reads as follows : —
“ My dear husband,
I was very sorry to read the letter sent by you. You shouldbe the king of my house. Did we get married so that theworld and the neighbours may laugh at us ? We should livehereafter as milk and honey and co-operate with each other.
I have not disobeyed your word. I shall worship you as myGod and venerate you hereafter.
I am weak on bed and I could not come to your place and Iam really sorry for it. Please excuse me. I shall recuperatemy health and come back to your place. I have been veryobedient and restrained towards you and God knows aboutit. As I am weak, I beg of you to call on me and look after me.
Your obedient and loving wife,
M. Parameswary. ”
This letter belies the plaintiff’s assertions and is eloquent of theaffection and regard of the defendant for the plaintiff. On receiptof this letter written by the defendant from her house to theplaintiff, the plaintiff went by car to her house and brought herto his house. Considering the fact that she was on her family wayand that her mother was there to look after her while, in spite ofher condition, she had to attend to everything at her husband’shouse, I am of the view that the defendant had good reason toleave the plaintiff’s house on 30th December, 1966, for hermother’s house and to prefer to stay there for the time being.
SHAJtVANANDA, J.-—Muthukumaraaumy v. Pcirameshwir■)
True, she did not get her husband’s consent, and for that reasonthe plaintiff might have been piqued. But the element of mali-cious desertion was absent in such departure. The defendant’sconduct might have been imprudent and unwise, but, certainlyit cannot be stamped as mala fide. In the circumstances, issues 1and 2 will have to be decided against the plaintiff on the plaintiff’sown verson of the facts. In view of this conclusion, it is notnecessary to examine the defendant’s version of the events ofher married life.
Even assuming that the defendant deserted the plaintiff on30th December, 1966, the next development on the plaintiff’s ownevidence turns the table against the plaintiff and makes him theactual deserter. For, it appears that on the evening of 11thJanuary, 1967 the defendant voluntarily came back to the plain-tiff’s house and went into the bed room and arranged the thingsthat were there. The timing of the return two days prior to theHindu festival of Thaipongal is not without its significance. Shewas in the house for a length of time that evening. But the plain-tiff wanted a written undertaking from her that she would notleave without informing him and that she would not stay awayfor such a long period and, according to the defendant that shesevered all connections with her mother and uncle. That was thecondition that he laid down to allow her to remain in the house.She was penitent and was prepared to ask for his pardon, butshe refused to sign such a document containing such degradingterms. The plaintiff could have graciously pardoned her, but.instead he chose to humilitate her and refused to have her inthe house unless and until she gave the undertaking. Conse-quently she was compelled to leave the house at about 11 p.m. Inthe middle of the night she was thus obliged to go back to herhouse. The attitude and conduct of the plaintiff, to say the least,smacks of refined cruelty and is inexcusable. By her bona fidereturn she had purged herself of her fault, if any, in leaving theplaintiff’s house on 30th December, 1966, and thus terminatedthe desertion. Termination of desertion can take place by a super-vening animus revertendi, coupled with a bona fide approach tothe deserted spouse with a view to resumption of life together.The genuineness of the defendant’s offer to return has not beenquestioned. In the circumstances, the plaintiff could not have law-fully refused re-instatement. The refusal of a defendant’s bonafide offer to return which the plaintiff had no right to refuseconverted the plaintiff into the deserting party and the plaintiffthereafter became the deserter and rendered himself guilty ofmalicious desertion. Even when reconciliation was thereafterattempted at the instance of the plaintiff through the agency of
SIIAEVANAKDA, J.—Muthukumarasamy v. Parameshuiary
C. Sivagurunathapillai, the plaintiff, according to Sivagurunatha-pillai, persisted on the defendant giving a written undertakingas a prelude to reconciliation. The plaintiff’s senseless demandtended to destroy any chance of resuming cohabitation.
A deserted spouse must always, until presentation of his plaint,affirm the marriage and be ready to take back the desertingspouse. “ Desertion as a ground for divorce differs from thestatutory ground of adultery and cruelty in one important res-pect. The offence founding the cause of action is not complete —is (as it were) inchoate — until the action is constituted. If onespouse has committed adultery, or has treated the other withcruelty, the latter has an accrued right to petition for divorce.He or she may at once repudiate the marriage and is no longerbound to affirm it and re-instate the offending spouse. Thedeserted spouse has no such right, no such election. If the desert-ing spouse genuinely desires to return, his or her partner cannotrefuse re-instatement. ” — per Evershed M. R. Perry v. Perry(1952—1 A. E. R. 1076 at 1079—1080). On the view of the facts,the plaintiff rendered himself responsible for the parties livingapart subsequently. He has to blame himself for the subsistingstate of affairs.
It is not necessary to go into the circumstances of the break-upand into the question of responsibility for the failure of the recon-ciliation attempted during the pendency of the proceedings. Thetrial Judge has accepted the defendant’s version, though suchversion is open to a certain amount of criticism.
In my view, it is not the defendant but it is the plaintiff who.is guilty • of malicious desertion. In the circumstances, thedefendant is entitled to a decree of judicial separation.
I fully endorse the trial Judge’s finding “ that the plaintiff isnot entitled to the custody of the child as he has upto date shownno love for, interest in or consideration for the child. ” By hiscallous disregard of his paternal obligations, the plaintiff hasdisentitled himself to any claim for the custody of his child. Theinterest of the child demands that he should be with the defen-dant and not with the plaintiff who has conducted himself as astranger. The plaintiff will however, if he is so minded, beentitled to have reasonable access to the child at the defendant’shouse.
The judgment entered by the District Judge is affirmfthe appeal is dismissed with costs.
Thamotheram J.—I agree.
Ratwatte J.—I agree.
K. MUTHUKUMARASAMY, Appellant, and PARAMESHWARY, Respondent