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PETITIONER: R. BALASUBRAMANIAN

       Vs.

RESPONDENT: SMT. VIJAYALAKSHMI BALASUMBRAMANIAN

DATE OF JUDGMENT:       11/08/1999

BENCH: D.P.Wadhwa, M.BB.Shah

JUDGMENT:

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.

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     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.