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HIGH COURT OF MADHYA PRADESH
A. R. Navkar, J.
Satyapal Purswami
v.
Radha
F. A. No. 10 of 1980 against decree passed by B. L. Singhal, IV Addl. District Judge Gwalior;
Decided on 23-4-1982
Legal burden is upon the petitioning spouse to establish by convincing evidence beyond any reasonable doubt that the respondent abandoned him or her without reasonable cause. The petitioner must also prove that there was desertion throughout the statutory period and there was no bona fide attempt on the respondent's part to return to the matrimonial home and that the petitioner did not prevent the other spouse by his or her action by words or conduct from cohabitation. The expression 'willful neglect' included in the section does not introduce a new concept in Indian law unknown to the English law, but is only an affirmation of the doctrine of constructive desertion. The mid doctrine is not rigid but elastic and without doing violence to the principles governing it. It can be applied to the peculiar situations that arise in an Indian society and home. AIR 1964 SC 40. [Para 7
"In order that desertion may furnish a ground for judicial separation, the petitioner must prove the following ingredients: (1) Factum of separation; (2) Animus deserandi, i.e. the intention to bring cohabitation permanently to an end; and (3) period of not less than two years immediately preceding the presentation of the petition, during which separation has been continuing. If in fact there has been a separation, the essential question is whether the act could be attributable to an animus deserandi. In a matter of domestic quarrel between husband and wife it is hardly possible to adduce ocular evidence. But, at the same time, a mere allegation of ill-treatment and more so when it is very vague, cannot necessarily be an answer to the petition under Sec. 10. Where direct evidence is not available it is an absolute requirement that the written statement must contain the allegations with precision and with all necessary details. It is imperative to assert the nature are extent of ill treatment or beating when the wife complains of constructive desertion by her husband. The question of desertion cannot be decided by merely enquiring which party left the matrimonial home first. 1961 JLJ 1504 and AIR 1967 SC 176 relied on. [Para 10
(2) Hindu Marrige Act, 1955-S. 10 (1) (a)-reasonable ground to live separate-second marriage by husband-should be proved by the wife-if not proved husband can claim divorce if the separation was for more than two years alimony should be granted to divorced wife. [Para 18 & 20
(3) Evidence Act, 1872-S. 114-witness summoned and present-left by the party summoning the witness-presumption may be drawn that had the witness been examined the witness would have deposed against the person calling the witness. [Para 8
.
Navkar, J.
1. This is an appeal under section 28 of the Hindu Marriage Act, 1955, against the judgment and decree dated 15-1-1980, passed by the Fourth Additional District Judge, Gwalior, in Civil suit No. 15-A of 1999.
2. The plaintiff is the husband, while the defendant is the wife. The plaintiff, in the plaint, has alleged that the parties were married according to Hindu rites at Indore on 14-12-1973. After two days of the marriage, the wife and the husband came to Gwalior and started residing at 182, Sindhi Colony, Lashkar. After some time, it is alleged by the plaintiff that he observed a scar on the abdomen of the wife, so he enquired about it. But, the wife did not say anything regarding the matter. On 15-6-1975, the plaintiff took his wife to Dr. (Mrs.) Niglye, Nai Sarak, Lashkar and when the lady Doctor observed the scar, she opined that it is due to an operation performed on the wife some time ago. When the plaintiff pressed his wife to tell about it, she confessed that there was an operation before her marriage with the plaintiff because there was an abortion and the operation was performed by one Dr. Kukreja, practicing at Indore. The fact that there was an abortion before the marriage was never made known to the plaintiff. The wife, to show her repentance at her lapse prior to the marriage, gave a letter to the plaintiff that she is very sorry for the lapse and the lapse should be condoned by him. The plaintiff did not do anything in the said matter on the basis of the admission of the wife.
3. On 4-12-1975, the defendant left the house of the plaintiff and without consent or permission of the husband, when the members of the family were absent, after taking jewellery with her, she went to Indore, to the house of her parents. The plaintiff searched for her and then he went to Shivpuri along with one Nichaldas Sindhi, but he could not find the defendant at Shivpuri. Therefore leaving Nichaldas behind, the plaintiff further went in search of his wife upto Guna and when he could not find her at Guna, he came back and made an urgent trunk-call to the parents of the defendant. As the parents were not at home, the trunk-call could not mature. Then, after some time, the plaintiff wrote a letter to the father of the defendant for sending the wife back. The registered letter was received by the father of the defendant on 10-12-1975 and the letter was replied by the brother of the defendant on the same date. On 9-1-1976, the plaintiff sent a registered letter to the defendant saying that firstly, there was a lapse on her part and secondly, leaving the house of the husband without the permission of the husband is not proper for a married lady and the behaviour is highly objectionable. The letter was received by the defendant. But, she did not reply the same, nor she returned back to the house. As a last resort, the plaintiff along with his father, went to the house of the defendant's father to bring her back, but the father of the defendant and her brother behaved improperly with the plaintiff and his father and, therefore, they had come back to Gwalior. Since then the defendant has not come back to Gwalior. She remained with her parents for nearly two years and just to make a defence available on 3-10-1977, she sent a reply through one advocate Tej Kumar Sethi, alleging certain facts which were incorrect to the knowledge of the defendant. The said letter was replied on 20-10-1977 by a registered notice through Smt. M. N. Pendharkar, advocate. As the defendant has not come back to the plaintiff's house and she has left the house of the plaintiff for a period of two years continuously without any cause, it will amount that she has deserted the plaintiff and she wants to put the matrimonial relations to an end. Alleging this the plaintiff has said that he is entitled to a decree of divorce because the defendant has deserted the husband for a continuous period of two years without any sufficient or reasonable cause. The suit
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