IMPORTANT POINT
The failure on the part of wife to substantiate serious allegations that her father-in-law had attempted to molest her and even after his death wife s condition to join the husband on establishing a separate residence establish sufficiently the animus diserendi, necessary to prove legal desertion as required under Section 13(1)(ib) of the Hindu Marriage Act, 1955.

Headnote:(i) Hindu Marriage Act, 1955-Section 13(i) (ib) r/w explanation- Divorce on ground of desertion-The essential ingredients of the ground.
       Held : Desertion in the context of matrimonial law represents a legal conception. It is difficult to give a comprehensive definition of the term. The essential ingredients of this offence in order that it may furnish a ground for relief are:
        1. The factum of separation;
        2. The intention to bring cohabitation permanently to an end - animus deserendi;
        3. The element of permanence which is a prime condition requires that both these essential ingredients should continue during the entire statutory period;
       The clause lays down the rule that desertion to amount to a matrimonial offence must be for a continuous period of not less than two years immediately preceding the presentation of the petition. This clause has to be read with the Explanation. The Explanation has widened the definition of desertion to include willful neglect of the petitioning spouse by the respondent. It states that to amount to a matrimonial offence desertion must be without reasonable cause and without the consent or against the wish of the petitioner. From the Explanation it is abundantly clear that the legislature intended to give to the expression a wide import which includes willful neglect of the petitioner by the other party to the marriage. Therefore, 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). 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 and their continuance throughout the statutory period. (Para 7)
       (ii) Hindu Marriage Act, 1955-Sections 13(1)(ib) r/w Explanation, 10(1)(a) and 13A-Husband s petition for divorce on ground of desertion by wife-Wife going to her parents for delivery of child-Not returning after delivery on ground of indecent behaviour of father-in-law and insistence of a separate home-No evidence given of indecent behaviour-In the meantime father-in-law dying-Appellant the only son-Still no attempt by wife to rejoin unless separate home taken-Trial Court finding husband has established desertion by wife but granted decree for judicial separation instead of divorce-High Court holding wife was not guilty of her husband as she was willing to return to the matrimonial home-Whether correct? (No)-Appeals allowed-High Court reversed and Trial Court restored.
       Held : Coming to the case at hand, it is revealed from the evidence on record, as discussed in the judgments of the Trial Court and the High Court that the respondent had gone to her parents house for birth of the child, which apparently cannot be construed as an expression of her desire to forsake her husband permanently; but after the birth of her child when attempts were made by the appellant, his parents and relations, she laid down a condition that the appellant should live in a separate house from his parents taking the plea that her father-in- law had attempted to molest her, which explanation she signally failed to establish. In the meantime, father of the appellant expired some time in 1988, putting an end to the so-called reason of misbehavior of her father-in- law. There is nothing on record that thereafter she expressed her desire to join her husband at the matrimonial home. It is relevant to state here that the appellant is the only son of his parents and as expected, he was not willing to establish a separate residence leaving his parents to live alone in their old age. The cumulative effect of the circumstances and the conduct of the respondent is that she had given expression of animus deserendi, Thus, the two ingredients of the matrimonial offence of desertion i.e. separation in fact and animus deserendi have been established by the appellant. The learned trial Judge, having regard to the facts and circumstances of the case, was right in recording the finding that the husband had successfully established the case of desertion by the wife and exercising the discretion vested under Section 13A of the Act, the learned trial Judge had granted the decree of judicial separation instead of divorce. The High Court recorded the finding that in the absence of any evidence, direct or circumstantial, in support of her plea of alleged indecent behavior by her father-in-law, the Court was not prepared to accept the allegations made by her against her father-in-law; the Court without discussing any evidence, had observed that as the cause itself has disappeared or ceased to exist the wife had agreed to join the husband, and even before the death of the husband s father she was ready and lived with the husband indeed" and arrived at the conclusion that the wife cannot be held to have the necessary intention to put an end to the matrimonial obligation and, therefore, could not be found guilty of deserting the husband. The High Court has not discussed whether the alleged offer by the wife to live with her husband after the death of her father-in-law was indeed a sincere move or merely a hollow expression bereft of any sincerity. The High Court has also not discussed if she indeed had the desire to come and live with her husband what prevented her to request her parents to take necessary steps in the matter. In the absence of any such evidence the finding recorded by the High Court that the wife was not guilty of deserting her husband cannot be sustained. The failure on the part of the wife to substantiate a serious allegation of infamous conduct of indecent advances said to have been made to her by the father-in-law, taken together with the absence and omission from her side to demonstrate her readiness and willingness to discharge her continuing obligation to return to the matrimonial home, establish sufficiently the animus deserendi, necessary to prove legal desertion as required under section 13(1)(ib). The conduct of the wife seems to be more indicative of a firm determination not to return to the marital home and discharge the obligations attendant thereto. Therefore, the judgment of the High Court is unsustainable and has to be set aside. Accordingly, these appeals are allowed, the judgment of the High Court is set aside and the judgment of the trial Court is restored. There will, however, be no order as to costs. (Paras 13 & 14)

JUDGMENT

D.P. Mohapatra, J.-These appeals, filed by the husband of the respondent are directed against the judgment of the Division Bench of the High Court of Andhra Pradesh in AAO Nos. 365 and 718/91, in which the High Court allowed the appeal filed by the wife and dismissed the appeal filed by the husband and set aside the judgment passed by the Subordinate Judge, Narsapur.

2. The appellant Adhyatma Bhattar Alwar, and the respondent Adhyatma Bhattar Sri Devi were married on 22nd August, 1978 in Nalamvari Choultry at Rajahmundry. The couple stayed together in village Palacole where the parents of the husband reside. A female child was born to them on 12th December, 1979, whereafter they separated. The wife and daughter lived with her parents at Rajhmundry, while the husband continued to stay with his parents at Palacole. The husband filed a petition for dissolving the marriage under Section 13 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act ) praying for a decree of divorce on the ground stated in sub-clause (ib) of Sub-section 1. In the petition it was alleged, inter alia, that the father of the respondent - wife had taken her to Rajahmundry for delivery and also stating that her mother was not well. After birth of the child, since the respondent did not return to Palacole, the appellant, his father and other relations made attempts to persuade the respondent s father to send his daughter to Palacole. The attempts did not bear fruit as the respondent was insistent that the appellant should live separately from his parents in a separate house. Since the condition was not acceptable to the appellant, she refused to join him at Palacole. On 23rd May, 1981 the appellant went to Rajahmundry to bring the respondent but she was not sent and the appellant was informed that the respondent would be sent only after he got a job. It is relevant to state here that at the time of marriage, the appellant had graduated in Commerce (B.Com.); subsequently he completed M.A. in Hindi, but he was without a job. Since all attempts to persuade the respondent to come and live with him failed, the appellant filed the petition on 21st February, 1984 for divorce on the ground of desertion by the wife for a period of more than two years.

3. Contesting the application for divorce, the respondent repudiated the allegations made by the appellant that she had voluntarily left her matrimonial home for staying with her parents. While admitting that she had gone to her parental home for birth of the child whereafter she had returned to her father-in-law s house where she faced a very embarrassing situation as her father-in-law made indecent advances towards her and her complaints to her husband about such incidents went unheeded. She also averred that her husband appeared to be a silent spectator to such incidents and did not even raise any protest against his father s behaviour towards his daughter-in-law. In the circumstances, the respondent pleaded that she had every justification to insist on her husband having a separate residence. It was further alleged by her that in the month of August, 1980 her father-in-law had made repeated attempts at molesting her and when she vehemently protested against such behaviour she got a severe beating from him. She also complained that her husband was ill-treating and assaulting her, believing the false stories and backbitings of his mother. She contended that it was she who was deserted by her husband and not vice-versa.

4. Both parties led oral and documentary evidence before the Trial Court. The learned Subordinate Judge in the Judgment dated 8th December, 1989 held that the appellant had satisfactorily proved that the respondent was guilty of having deserted him for a continuous period of more than two years preceding the filing of the petition for divorce and that he was entitled to a decree for judicial separation under Section 10 of the Act instead of a decree for dissolution of marriage

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2001 Supreme(SC) 1549

Cases Referred (5)