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SUPREME COURT OF INDIA
19th October 1956
JAGANNADHA DAS, VENKATARAMA AYYAR AND SINHA, JJ.
Bipinchandra Jaisinghbai Shah, Appellant
Versus
Prabhavati, Respondent.
Civil Appeal No. 247 of 1953.
Advocates appeared
Mr. M.C. Setalvad Attorney General for India Mr. Purshotam Tricumdas Senior Advocate, (Mr. T Godiwala, Mr. J. B. Dadachanji, Mr. Rameshwar Nath and Mr. S. N. Andley, Advocates with them), for Appellant; Mr. C. K. Daphtary Solicitor General of India (Mr,. Sardar Bahadur, Advocate, with him), for Respondent.
The appellant, who was the plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of the Jain Community, and there was a child born to them. In 1947 the appellant left for England on business. It was the plaintiffs case that during his absence from Bombay the defendant became intimate with one M who was staying with plaintiffs family at Bombay where the defendant was also living and when she went to Patan after the plaintiffs departure for England she carried on" amorous correspondence" with M who continued to stay with the plaintiffs family in Bombay. The plaintiff returned to Bombay from abroad on May 20, 1947. To receive him back from his foreign journey the whole family including the defendant was there in Bombay. According to the palintiff, .he found that on the first night after his return his bed had been made in the hall occupied by his father and that night he slept away from his wife. Next morning, the plaintiffs father handed over a letter written by the defendant to M. He decided to tackle his wife with reference to the letter, and according to him, the defendant admitted having written the letter to M and to have further told the plaintiff that M was a better man than him and that Moved her and she loved him. This was on the 32rd May, 1947, Next morning the defendant packed her baggage and left for J alga on where her parents lived, on the pretext that her sisters marriage was to take place. -On July 15, 1947, the appellant sent a notice to the respondent through his solicitor charging her with intimacy between herself and M and asking her to send back the boy. No answer to this letter was received by the plaintiff. Certain other incidents followed for reconciliation but to no effect. On July 4, 1947, the appellant instituted the suit for divorce under S. 3(1) (d) ,of the Bombay Hindu Divorce Act, 1947, on the ground that the respondent had been in desertion ever since May 24, 1947, without reasonable -cause and without his consent and against his will for a period of over four years. The respondents case was that it was the appellant who by his treatment of her after his return from England had made her life unbearable and compelled her to leave her marital home against her wishes.
Respondents case was not proved but it was in evidence that after the solicitors notice dated 15th July, 1947, was received by the respondent, her father and other relations made an attempt to bring about reconciliation between the parties but could not succeed owing to the attitude of the appellant.
Held: (disimissing the appel): (1) For the offence of desertion so far as the deserting spouse is concerned two essential conditions must De there, namely (1) the factun of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted spouse is concerned (1) the absence of consent, and (2) absence of conduct giving -reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively.
Desertion is a matter of inference to be drawn from the facts and circumstances of each case. The inference may be drawn from certain
facts which may not in another case be capable" of leading to the same inference; that is to say, the facts have to be viewed as to the purpose which is revealed by those acts or by conduct and expression of intention both anterior and subsequent to the actual acts of separation. If, in fact there has been a reparation, the essential question always is whether that act could be attributable to an animus deserendi. The offence of desertion "commences when the fact of separation and the animus deserendi co-exist. But it is not necessary that they should commence at the same time. The de facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time; for example, when the separating spouse abandons the marital home with the intention, express on implied, of bringing cohabitation permanently to a close. The law in England has prescribed a three years period and the Bombay Act prescribed a period of four years as a continuous period during which the two elements must subsist. Hence, if a deserting spouse takes advantage of the locus penitential thus provided by law and decides to come back to the deserted spouse by a bona fide offer of resuming the matrimonial home with all the implications of marital life, before the statutory period is out or even after the lapse of that period, unless proceedings for divorce have been commenced, desertion comes to an end and if the deserted spouse unreasonably refuses to offer, the latter may be in desertion and not the former. Hence it is necessary that during all the period that there has been a desertion, the deserted spouse must affirm the marriage and be ready and willing to resume married life on such conditions as may be reasonable. It is also well settled that in proceedings for divorce the plaintiff must prove the offence of desertion, like any other matrimonial offence, beyond all reasonable doubt. Hence, though corroboration is not required as an absolute rule of law the courts insist upon corroborative evidence, unless its absence is accounted for to the satisfaction of the court.
(2) If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home.
(3) On the facts of this case, though the initial fault lay with the respondent, her leaving her marital home was not actuated by any animus to desert her husband but as the result of her sense of guilt, and as subsequently she was willing to come back but could not do so owing to the attitude of the appellant, there was no proof that she deserted him, much less that she" had harbored that animus for the statutory period. The appellants case must therefore fail. The fact that the defendant has failed to substantiate by reliable evidence her case of constructive desertion by the husband does not necessarily lead to the conclusion that the plaintiff has succeeded in proving his case. The plaintiff must satisfy the court that the defendant had been in desertion for the continuous period of four years as required by the Act.
(4) Once it is found that one of the spouses has been in desertion, the presumption is that the desertion has continued and it is not necessary for the deserted spouse actually to take steps to bring the deserted spouse back to the marital home.
(5) It is not necessary that at the time the wife left her husbands home she should have at the same time the animus deserendi.
Judgement
SINHA J. - This is an appeal by special leave against the judgment and decree of the High Court of judicature at Bombay dated August 22, 1952, reversing those of a single Judge of that Court on the Original Side, dated March 7, 1952, by which he had granted a decree for dissolution of marriage between the appellant and the respondent.
2. The facts and circumstances of this case may be stated as follows. The appellant who was plaintiff, and the respondent were married at Patan on April 20, 1942, according to Hindu rites of Jain Community. The families of both the parties belong to p73 Patan, which is a town in Gujarat, about a night s rail journey from Bombay. They lived in Bombay in a two room flat which was in occupation of the appellant s family consisting of his parents and his two sisters who occupied the larger room called the hall, and the plaintiff and the defendant who occupied the smaller room called the kitchen. The appellant s mother who is a patient of asthama lived mostly at Patan. There is an issue of the marriage, a son named Kirit, born on September 10, 1945. The defendant s parents lived mostly at Jalgaon in the East Khandesh district in Bombay. The parties appear to have lived happily in Bombay until a third party named Mahendra, a friend of the family came upon the scene and began to live with the family in their Bombay flat some time in 1946, after his discharge from the army. On January 8, 1947, the appellant left for England on business. It was the plaintiff s case that during his absence from Bombay the defendant became intimate with the said Mahendra and when she went to Patan after the plaintiff s departure for England she carried on amorous correspondence with Mahendra who continued to stay with the plaintiff s family in Bombay. One of the letters written by the defendant to Mahendra while staying at the plaintiffs flat in Bombay, is Ex. E, as officially translated in English the original being in Gujarati except a few words written in faulty English. This letter is dated April 1, 1947, written from the plaintiff s house at Patan, where the defendant had been staying with her mother in law. This letter had been annexed to the plaint with the official translation. It was denied by the defendant in her written statement. But at the trial her counsel had admitted it to have been written by her to Mahendra. As this letter started all the trouble between the parties to this litigation it will have to be set out in extenso hereinafter. Continuing the plaintiff s narrative of events as alleged in the plaint and in his evidence, the plaintiff returned to Bombay from abroad on May 20, 1947. To receive him back from his foreign journey the whole family including the defendant was therein Bombay. According to the plaintiffs he found that on the first night after his return his bed had been made in the hall occupied by his father and that night he slept away from his wife. As this incident is said to have some significance in the narrative of events leading up to the separation between the husband and the wife and about the reason for which the parties differ, it will have to be examined in detail later. Next morning that is to say, on May 21, 1947, the plaintiff s father handed over the letter aforesaid to the plaintiff who recognised it as being in the familiar handwriting of his wife. He decided to tackle his wife with reference to the letter. He handed to a photographer to have photo copies made of the same. That very day in the evening he asked his wife as to why she had addressed that letter to Mahendra. She at first denied having written any letter and asked to see the letter upon which the plaintiff informed her that it was with the photographer with a view to photo copies being made. After receiving the letter and the photo copies from the photographer on May 23, the plaintiff showed the defendant the Photo copy of the letter in controversy p73 between them at that stage and then the defendant
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