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K. Siddegowda Vs. Parvathamma - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 274 of 1963
Judge
Reported inAIR1965Kant299; AIR1965Mys299; (1965)1MysLJ124
ActsHindu Adoptions and Maintenance Act - Sections 187(2); Hindu Marriage Act - Sections 10(1)
AppellantK. Siddegowda
RespondentParvathamma
Excerpt:
..... - in this case that the separate residence of the respondent was without reasonable cause is not established since she had clearly statutory right to live separately......the two spouses were living separately. it is also not disputed that what actuated the wife to live separately from her husband was that her husband had another wife living and that wife was the first wife. it was urged before the civil judge that although the fact that the husband had another wife living, clothed the second wife with the right to live separately from her husband under section 187(2)(d) of the hindu adoptions and maintenance act, the second wife who commenced to live separately in the exercise of that right had nevertheless deserted her husband within the meaning of section 10(1)(a) of the hindu marriage act. that contention which was repelled by the civil judge was reiterated before us by mr. raghavendra rao.now under section 10(1)(a) of the hindu marriage act, the.....
Judgment:

Somnath Iyer, J.

(1) This is an appeal by a husband whose application for a decree of judicial separation was refused by the Civil Judge. That decree was sought on two grounds : The first was that the wife was in adultery. The second was that she had deserted the husband for a continues period of not less than two years immediately preceding the presentation of the petition.

(2) The disgraceful allegation that the wife was in adultery was abandoned by the husband in the Court below. He gave no evidence about it. Mr. Raghavendra Rao has therefore very rightly restricted his submission to the case constructed on the plea that there was desertion on the part of the wife.

(3) It is common ground that for a period of four years preceding the presentation of the application by the husband the two spouses were living separately. It is also not disputed that what actuated the wife to live separately from her husband was that her husband had another wife living and that wife was the first wife. It was urged before the Civil Judge that although the fact that the husband had another wife living, clothed the second wife with the right to live separately from her husband under Section 187(2)(d) of the Hindu Adoptions and Maintenance Act, the second wife who commenced to live separately in the exercise of that right had nevertheless deserted her husband within the meaning of Section 10(1)(a) of the Hindu Marriage Act. That contention which was repelled by the Civil Judge was reiterated before us by Mr. Raghavendra Rao.

Now under section 10(1)(a) of the Hindu Marriage Act, the spouse who has deserted the petitioner for a continues period of not less than two years immediately preceding the presentation of the petition, cannot resist an application for a decree for judicial separation. The expression 'desertion' means, according to the Explanation, occurring in section 10(1), desertion without reasonable cause and without the consent or against the wish of the deserted spouse and includes willful neglect of the deserted spouse. The argument maintained by Mr. Raghavendra Rao was that since the respondent who is the second wife commenced separate residence without the consent of the appellant and against his wish, there was desertion within the meaning of section 10(1)(a) of the Hindu Marriage Act.

(4) It seems to me that this argument has to be merely stated to be discountenanced. The clear meaning of the Explanation on which Mr. Raghavendra Rao depends is that there can be no desertion within the meaning of the Act unless the desertion is without reasonable cause and without the consent or against the wish of the deserted spouse. In order to constitute desertion, the explanation therefore insists upon the establishment of two ingredients. It should first be established that the separate residence of the deserting spouse was without reasonable cause. It should next be established that such separate residence was without the consent or against the wish of the deserted spouse. The explanation also postulates a third category of desertion such as what is constituted by the willful neglect of the deserted spouse by the deserting spouse.

(5) Mr. Raghavendra Rao urged that it is enough for the appellant to establish that the second wife began to live separately from the appellant without his consent and against his wish and that in any event the appellant had established willful neglect of the appellant by his second wife.

(6) Both these submissions, to my mind, are entirely devoid of substance. Now under section 18(2)(d) of the Hindu Adoptions and Maintenance Act, the respondent had the clear right to live separately from the appellant by reason of the fact that he had already another wife living. If she had the right to live separately in that way, it would be altogether unreasonable for any one to suggest that there was no reasonable cause for separate residence. If the law entitles the wife to live separately from her husband if he has another wife living, it is obvious that it would be reasonable for the wife to so live separately. That being so, it cannot be disputed that there was reasonable cause for the respondent before us to live separately from her husband.

But Mr. Raghavendra Rao contends that it was not enough if there was reasonable cause and that it was also necessary for the respondent to secure the consent of the appellant for such separate residence and that in any event if the husband was unwilling to allow the respondent to live separately from him, the separate residence would be against the wish of the husband and would therefore constitute desertion.

(7) This argument rests upon an altogether wrong interpretation of the Explanation to section 10(1) of the Hindu marriage Act. The meaning of the first part of the Explanation is that desertion is established only when there is absence of reasonable cause for separate residence and in addition the deserted spouse did not consent to such separate residence or opposed it. So long as one of those ingredients is not established, there can be no desertion under the first part of the Explanation. In this case that the separate residence of the respondent was without reasonable cause is not established since she had clearly statutory right to live separately. The existence of that right also negatives the argument that there was willful neglect of the appellant.

(8) In my opinion, this appeal should be dismissed.

(9) In the circumstances, no costs.

Chandrashekhar, J.

(10) I agree

(11) Appeal dismissed.


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