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Raghavan Radhakrishnan Vs. Sathyabhama Jayakumari and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 966 of 1979-D
Judge
Reported inAIR1985Ker193
ActsHindu Adoptions and Maintenance Act, 1956 - Sections 18(2)
AppellantRaghavan Radhakrishnan
RespondentSathyabhama Jayakumari and anr.
Appellant Advocate K. Sudhakaran and; V.R. Raveendran, Advs.
Respondent Advocate P. Sukumaran Nair, Adv.
DispositionAppeal dismissed
Cases ReferredKanthimathi v. Parameswara Iyer
Excerpt:
family - maintenance - section 18 (2) of hindu adoptions and maintenance act, 1956 - wife's claim of maintenance challenged for want of proof that husband deserted her with animus - absence of animus deserendi does not provide for husband's defence - act of 1956 enacted for protection of neglected wives - held, suit for maintenance decreed. - - accordingly, the fact that the husband had no animus deserendi did not afford him a good defence to the complaint of wilful neglect to maintain. 7. strong reliance was sought to be placed by the counsel for the appellant on the division bench case of this court in kanthimathi v......with the animus in that behalf. section 18(2)(a) of the maintenance act reads as follows : --'2. a hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.- (a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;' on a plain reading of the section, it is not possible to lake a view that to constitute desertion under clause (a) of sub-section (2) of section 18 of the maintenance act, not only desertion but desertion with the animus to do so has to be established by the plaintiffs in a suit for maintenance. it has to be noticed that section 18 of the maintenance act has been enactedexclusively for the benefit of the hindu.....
Judgment:

Bhaskaran, C.J.

1. The question of law, raised in the suit and the first and second appeals, which gave rise to the reference of the matter to the Full Bench, is whether for the purpose of Section 18(2)(a) of the Hindu Adoptions and Maintenance Act, 1956 (78 of1956), (hereinafter referred to as the Maintenance Act) animus is required to be established to prove desertion.

2. The brief facts leading to this second appeal could be stated as follows : -- The first plaintiff Sathyabhama Jayakumari, on behalf of herself and her minor child, 2nd plaintiff, instituted a suit claiming maintenance at the rate of Rs. 100/- and Rs. 50/- per month respectively for herself and the 2nd plaintiff, from the defendant, Raghavan Radhakrishnan, who had married her on 12-11-1973. The 2nd plaintiff was born in that wedlock on 11-8-1974. The first plaintiff was residing with the defendant till 23-3-1974 on which date she left for her parents' home for confinement. The trial Court found that the defendant had abandoned the plaintiffs without reasonable cause, and decreed the suit as prayed for.

3. The main ground taken in the first appeal was that the trial Court was in error in finding that the defendant had deserted his wife, and the offer by him to maintain the plaintiffs was not bona fide. The first appellate Court found that there was no ground to interfere with the decree passed by the trial Court, and dismissed the appeal. Hence this second appeal.

4. The sole question of law that arises for consideration in this second appeal is whether, for the purpose of desertion under Section 18(2)(a) of the Maintenance Act, there was a burden cast on the plaintiffs to prove not only that her husband had deserted her (and her child) but also that he did so with the animus in that behalf. Section 18(2)(a) of the Maintenance Act reads as follows : --

'2. A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.-

(a) if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of wilfully neglecting her;'

On a plain reading of the Section, it is not possible to lake a view that to constitute desertion under Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act, not only desertion but desertion with the animus to do so has to be established by the plaintiffs in a suit for maintenance. It has to be noticed that Section 18 of the Maintenance Act has been enactedexclusively for the benefit of the Hindu wife, who might be required to live separately from her husband; and Clause (a) of Sub-section (2) thereof provides that if a Hindu wife lives separately from her husband, for that reason alone she would not forfeit her right to claim maintenance in case her husband is guilty of desertion without reasonable cause and without her consent or against her wish or wilfully neglecting her. The Parliament has taken care to make clear what in the context the expression 'desertion' means. The expression 'that is to say' of abandoning her after the word 'desertion' is of great significance. The Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotra, AIR 1976 SC 800 (Para 7) has explained the implication of the words 'that is to say', as follows :

'Ordinarily, the expression 'that is to say' is employed to make clear and fix the meaning of what is to be explained or defined. Such words are not used, as a rule, to amplify a meaning while removing a possible doubt for which purpose the word 'includes' is generally employed. In unusual cases, depending upon the context of the words 'that is to say', the expression may be followed by illustrative instances. The precise meaning of the words 'that is to say' must vary with the context.'

Whatever might be the dictionary meaning, or, for that matter, the meaning assigned to that expression in any other enactment, so far as Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act is concerned, 'abandoning the wife without reasonable cause' and without her consent or against her wish or neglecting her, would amount to desertion. We highlight the significance of the clarification in regard to the expression 'desertion' in Clause (a) of the Sub-Section because the counsel for the appellant had dwelt upon the expression 'desertion' as described in Explanation to Section 13(1) of the Hindu Marriage Act, 1955 (hereinafter referred to as the Marriage Act) in support of his contention that to constitute 'desertion', animus was a must. Explanation to that sub-section reads as follows :

'In this sub-section, the expression 'desertion' means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.'

It has to be noticed that the connotation of the expression 'desertion' as a ground for divorce between the parties to the marriage, need not he identical to that of the expression 'desertion' in the context of the claim for maintenance by the wife, deserted or neglected. For the purpose of 'divorce' under Section 13 of the Marriage Act, the petition could be either by the husband or wife; and the desertion could be either by the husband or the wife. Divorce cuts away the matrimonial tie completely; and the desertion to be used as a ground for such a relief should be of a higher degree; naturally it has to be desertion coupled with the animus to do so. That appears to have been the legislative policy behind the rigidity in the matter of proof in regard to the expression 'desertion' as used in Section 13 of the Marriage Act in contrast to the expression used in Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act. If that rigidity by reading into the Clause the word 'animus', which the Legislature has not chosen to incorporate, is insisted upon, it would defeat the very purpose of the legislation for protecting the interests of the abandoned and neglected wives.

5. In Halsbury's Laws of England, Fourth Edition, Volume 13, at page 291, para 585, it is stated :

'Desertion is not to be tested merely by ascertaining which party left the matrimonial home first. If one spouse is forced by the conduct of the other to leave home, it may be that the spouse responsible for the driving out is guilty of desertion; so for example, if a husband without just cause or excuse persists in doing things which he knows his wife will probably not tolerate, and which no ordinary woman would tolerate, and then she leaves, the husband will have deserted her whatever his desire or intention may have been.'

Counsel for the appellant relied on the decision of the Supreme Court in Bipinchandra Shah v. Prabhavathi, AIR 1957 SC 176. In that decision in para 10 at p. 183, Sinha, J., who spoke for the Bench, has stated as follows :

'For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there, namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).'

This observation, we must note, has been made with reference to the requirements for a decree for dissolution of the marriage under the Bombay Hindu Divorce Act, with particular reference to the essential requirements of 'desertion' as defined in Section 3(d) of that Act. It has also to be pointed out that the expression used is the 'offence of desertion'. The standard of proof and rigidity of the requirement for constituting the 'offence of desertion' under the Divorce Act could not be egnated to the right of the deserted wife to claim maintenance under Section 18 of the Maintenance Act, which is a special provision. The Parliament has enacted it in its anxiety to preserve and protect the interests of Hindu wives.

6. In Brannan v. Brannan (1973) 1 All ER 38. Sir George Baker P.. for the Bench, observed :

'........the complaints of desertion and wilfulneglect to maintain did not automatically stand or fall together; accordingly, the fact that the husband had no animus deserendi did not afford him a good defence to the complaint of wilful neglect to maintain......'

We are, therefore, of the opinion that the decision of the Supreme Court does not advance the case of the appellant. For the same reason, the observations of the Supreme Court in Rohini Kumari v. Narendra Singh, AIR 1972 SC 459 at p. 462 also could not be considered to be an authority for the proposition that to constitute 'desertion' in terms of Section 18(2)(a) of the Maintenance Act, the wife who has been deserted is required to prove not only the factum of desertion by her husband, but also the existence of animus deserendi. That was a decision rendered while construing the requirements of Section 10(1)(a) of the Marriage Act, which cannot stand comparison with the provisions contained in Section 18(2)(a) of the Maintainance Act.

7. Strong reliance was sought to be placed by the counsel for the appellant on the Division Bench case of this Court in Kanthimathi v. Parameswara Iyer, 1974 Ker LT 889 : (AIR 1974 Ker (24) and what impelled Paripoornan J., before whom the matter came up at the first instance to refer the case before the Division Bench was the argument advanced by the counsel for the appellant that the finding regarding the presence of animus to desert hiswife, or to put an end to his marital obligations was necessary in view of this decision. The passage which is relied on is the one contained in para 8 of the above decision, at p. 894, and that reads as follows :

'On a consideration of the evidence in the case before us on a whole we are not able to come to the conclusion that the respondent-husband had at any time the necessary animus to desert his wife or put an end to his marital obligations towards her, though for some time, except during his frequent visits, there was a de facto separation due to exigencies of his employment. This is not sufficient to attract Section 18(2)(a) of the Hindu Adoptions and Maintenance Act, 1956.'

For one thing, the main proceedings before the Division Bench were those relating to the restitution of conjugal rights under Section 9 of the Marriage Act. Secondly, the Division Bench did not lay down as a legal proposition that animus deserendi is an essential feature of desertion in terms of Clause (a) of Sub-section (2) of Section 18 of the Maintenance Act. Though it is true that on evidence it was found that there was no proof of animus on the part of the husband to desert his wife, what the Division Bench pointed out was that there was a de facto separation due to exigencies of his employment, except during his frequent visits, which was not sufficient to attract Section 18(2)(a) of the Maintenance Act.

8. The provisions of a legislation aiming at the protection and welfare of women who are deserted or neglected have to be construed liberally bearing in mind the objects sought to be achieved and the mischiefs intended to be curbed. In England, the rights of women arising out of the matrimonial relationship have been substantially enhanced by successive legislation leading to the Health and Social Services and Social Security Adjudications Act, 1983 and the Matrimonial and Family Proceedings Act, 1984; and if we insist on the proof of animus on the part of the husband to desert his wife, as a requirement preceding to the claim for maintenance by the Hindu wife, deserted and neglected, that would not only run counter to the spirit and object of the provisions of a beneficent legislation, but also would amount to retracting from the path of social justice, which under the Constitution, the courts are bound to advance.

The result, therefore, is that we dismiss the second appeal with costs.


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