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IN THE HIGH COURT OF BOMBAY
V.A. Mohta M.F. Saldanhs, JJ.
Shri Kishorilal Govindram Bihani.... Appellant
Versus
Sou. Dwarkabai Kishorilal Bihani... Respondent.
First Appeal No. 272 of 1990, decided on 11-3-1992.
Advocates appeared :
A.V. Anturkar, for the appellant-original petitioner.
Pavia Shah, for N.B. Shah, for the respondent original respondent.
Hence, legal assistance should be allowed by Family Court when litigants desire.
Section 13-offence of desertion-Actual and constructive-Essential ingredients that constitute matrimonial offence of desertion.
The essential ingredients that constitute the matrimonial offence of desertion take on different complexions, human nature and its complexities being what they are. The simplest form of desertion, defined be the commentators as actual desertion involves the fact of separation (factum desirandi) and the intention to desert (animus desirandi). This contemplates a situation where the spouses have physically parted company, in the first instance, and it is demonstrated that there is an intention on the part of one of them to withdraw from the company of the other. In other words, it is not merely a fact that the parties are staying apart from each other for sometime, which may be due to a variety of reasons, but the act that this is accompanied by the intention put an "end to the married state and to the marital obligations. A slight variation of this situation could arise in a case where the offending spouse and, in fact, the guilty one, is not the party who has departed but the one who stayed behind, such as the familiar situation where, for reasons of severe mental and/or physical cruelty, it becomes unsafe or impossible for the wife to continue to live with her husband and she is forced to leave. Undoubtedly, in such a situation, it would not be open for the husband to contend that the wife has been guilty of desertion. There also arise the restricted category of cases where courts have held that wilful neglect of an extreme type could be construed as desertion, a typical situation being one where the spouses, though residing under the same roof, one of them has nothing to do with other and virtually puts an end to the marital status, though neither of them have physically moved out of the premises.
Desertion, as pleaded or alleged, may assume one or more of the aforesaid complexions and it is, therefore, essential for the court to examine the material on the basis of which the charge is sought to be established. It is equally necessary to guard against certain familiar situations to which there exists a total defence, for instance, where it is alleged that the wife left the matrimonial home without the husbands consent and refused to return inspite of several requests. It would be a valid defence if the court is satisfied that the grounds which have forced the wife to live separately are genuine and cogent. It is equally well settled law that where one spouse has left without any valid justification that the law does not insist on the other spouse making any special or undue efforts to bring the deserting spouse back. It is true that by making such efforts, the innocent party would establish its bona fides, but merely because no such efforts were made, it would be incorrect to presume that there is a acquiescence of the act of desertion.
The time factor is one of consequence because the statute prescribes a continuous period of desertion extending to two years as the time span which is fatal to the marriage. It is obvious that sufficient allowance has been made even for difficult situation, for the law takes cognizance of the fact that there is a limit reasonableness and to the length of time for which the opposite party can be made to suffer and, therefore, the cause of action arises immediately on its being established that desertion has taken place for a continuous period of two years.
2. The appellant before us, the original petitioner before the Family Court at Pune in petition No. A-812 of 1989, has presented this appeal which is directed against the judgment and order of that Court dated 20-1-1990. The appellant-husband had originally filed a matrimonial petition on 13-2-1989 praying for restitution of conjugal rights. His grievance was that the respondent-wife, whom he had married on 6-7-1973, had resided with him till 26-1-1975 on which date she returned to her parents' home at Village Sonai. Thereafter, followed a long gap of separation, which ultimately came to an and on 16-12-1984 when the wife ostensibly at the behest of the petitioner and other persons came back to reside with the appellant. This cohabitation was for a short period because the respondent again left the matrimonial home on 27-2-1985 and it is common ground that there was no resumption of cohabitation thereafter. The appellant had originally moved the Family Court for a relief of restitution of conjugal rights obviously with the intention of restoring the marriage to its original status. The couple had two children, both sons, the first of them born on 5-3-1975 and the second one born on 15-10-1985. The appellant had contended that in spite of his best efforts and for no fault of his that the wife had continued to reside separately from him and he was, therefore, desirous that the Court should grant him relief whereby his conjugal rights could be restored. Two months thereafter, on 25-5-1989 to be precise, the appellant presented an application to the Court for amendment of the original petition, which came to be granted. By this amendment, the appellant prayed for the alternate relief of divorce from the respondent on the ground that she had deserted him for a continuous period of over two years.
3. We must at this stage dispose of an objection that was sought to be canvassed before us by learned Counsel Shri Shah, appearing on behalf of the respondent-wife. He has pointed out to us that the petition in its amended form retains the original prayer for a decree of restitution of conjugal rights and at the same time incorporates an alternate plea for divorce on the ground of desertion. Mr. Shah points out that on these pleadings, the appellant before us is totally precluded from praying for a decree of divorce. He contends that the prayers are mutually exclusive and if the appellant desires restitution of conjugal rights first and expresses unqualified willingness to live with the respondent, then the question of granting any alternate relief cannot be pleaded in appeal, implying thereby a bar of estoppel. Mr. Anturkar, learned Counsel appearing on behalf of the appellant, has pointed out to us, and to our mind with some justification, that the original prayer made to the trial Court is an indication of the utmost bona fides on the part of the appellant, who has all through the pendency of the marriage displayed his desire to continue with it. Once he realised when the matter had come to the Court from the attitude of the respondent that the prayer for restitution of conjugal rights in the circumstances
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