1. Petition for judicial separation on grounds of desertion under Section 10(1)(a) of the Hindu Marriage Act, 1955 — dispute over consent and intention to desert. (Para 1 , 2 , 17 )
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1964 Supreme(SC) 188
SUPREME COURT OF INDIA
14th August, 1963.
B.P. SINHA, C.J.I. (on leave), S.K. DAS, ACTG. C.J.I., K. SUBBA RAO, RAGHUBAR DAYAL AND N. RAJAGOPALA AYYANGAR, JJ.
Lachman Utamchand Kirpalani, Appellant
Versus
Meena alias Mota, Respondent.
Civil Appeal No. 292 of 1961.
Advocates Appeared
M/s. J. C. Bhatt and N. N. Keswani, Advocates, for Appellant; Mr. C. B. Agarwala, Senior Advocate, (M/s. C. M. Mehta and V. J. Merchant, Advocates of M/s. Gagrat and Co., with him), for Respondent.
Advocates:
C.B.AGARWAL, C.M.MEHTA, M.S.J.C.Bhatt, N.N.KESHVANI, V.J.MERCHANT
C.B.AGARWAL, C.M.MEHTA, M.S.J.C.Bhatt, N.N.KESHVANI, V.J.MERCHANT
Desertion requires both the factum of separation and animus deserendi. The petitioner must prove desertion without reasonable cause. Conduct of the deserted spouse only excuses continued separation if it actually influences the deserting spouse to remain apart, rather than being an abstract legal justification.
Headnote:(A) Hindu Marriage Act, 1955 - Section 10(1)(a) and Explanation - Judicial separation on grounds of desertion - For the offence of desertion, two essential conditions must coexist: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly, from the perspective of the deserted spouse, there must be (1) an absence of consent and (2) an absence of conduct giving reasonable cause to the other spouse to leave the matrimonial home. (Paras 18, 42)
(B) Burden of Proof - The legal burden of proving desertion, including the factum, the animus deserendi, and the absence of reasonable cause, rests entirely on the petitioner. The petitioner must establish these elements to the satisfaction of the court throughout the entire statutory period of two years. (Paras 18, 19, 43, 50)
(C) Reasonable Cause - The question of whether a deserting spouse has a reasonable cause for not bringing the desertion to an end is a question of fact. Conduct of the deserted spouse may excuse the deserting spouse from attempting reconciliation if such conduct legally operates as consent to the separation. However, such conduct must have a real impact on the mind of the deserting spouse, causing them to continue living apart, to effectively terminate the state of desertion. (Paras 30, 31)
Facts of the case:
The husband filed a petition for judicial separation on the ground that the wife had deserted him for a continuous period of not less than two years. The wife had left the matrimonial home and subsequently traveled abroad. The husband alleged that she left without his consent and with the intention of permanently breaking the matrimonial home. The wife contended that she left with the consent of the husband and his parents for health reasons and that the husband's subsequent correspondence, which contained imputations of unchastity, provided a justifiable cause for her not returning.
Findings of Court:
The court found that the wife left the matrimonial home without the husband's consent. Her intention to desert was established by her explicit statements to a witness and her conduct, including her failure to visit the husband or their child while staying in the same city. Regarding the husband's harsh letter, the court found that the wife's own replies, which expressed a willingness to return, indicated that the letter did not actually persuade her to stay apart or provide a legal justification to continue the desertion.
Issues: Whether the respondent left the matrimonial home with the petitioner's consent; whether the respondent possessed the animus deserendi to permanently break the matrimonial home; and whether the petitioner's correspondence provided a reasonable cause for the respondent's continued absence.
Ratio Decidendi: Desertion is established when the factum of separation and animus deserendi coexist without reasonable cause. The burden of proof lies with the petitioner. A communication from the deserted spouse, even if containing harsh or unfounded imputations, does not terminate desertion if the deserting spouse's own conduct and correspondence demonstrate a continued willingness to return, proving the communication had no actual impact on the intention to remain separated.
Result: Appeal allowed.
Legal Category Hierarchy
Table of Contents
2. Whether the spouse left the matrimonial home with consent and whether subsequent offensive correspondence provided reasonable cause to justify continued separation. (Para 2 , 3 , 9 , 14 , 22 , 29 , 41 , 42 )
3. Desertion requires both factum of separation and animus deserendi; the petitioner must establish that the desertion occurred without reasonable cause throughout the statutory period. (Para 18 , 19 , 20 , 22 , 23 , 26 , 27 , 28 , 31 , 33 , 34 , 35 , 36 , 38 )
4. Desertion is the intentional permanent abandonment of a spouse without consent or reasonable cause; conduct of the deserted spouse only interrupts desertion if it actually causes the deserting spouse to stay away. (Para 18 , 31 )
5. Appeal allowed — High Court judgment reversed — decree for judicial separation restored. (Para 40 , 75 )
6. What constitutes legal desertion under the Hindu Marriage Act?
Desertion requires two essential conditions: the factum of separation and the animus deserendi (intention to bring cohabitation permanently to an end), occurring without the other spouse's consent and without reasonable cause. (Para 18 )
7. Who bears the burden of proof in a petition for judicial separation based on desertion?
The legal burden rests on the petitioner to prove both the factum of separation and the animus deserendi, and to establish that the desertion occurred without reasonable cause throughout the statutory period. (Para 18 , 19 , 43 , 45 )
8. Does offensive conduct by the deserted spouse automatically terminate a state of desertion?
No. Conduct of the deserted spouse only terminates desertion if it provides a just cause for the deserting spouse to remain apart and actually impacts their mind, causing them to desist from reconciliation. (Para 30 , 31 )
9. What is the effect of a spouse's expression of willingness to return on a claim of desertion?
A bona fide offer to resume cohabitation ends desertion. However, mere assertions in letters are insufficient if subsequent conduct demonstrates that the intention to return was not genuine or sincere. (Para 28 , 38 )
10. What is constructive desertion in the context of the Act?
Constructive desertion occurs when one spouse's expulsive conduct forces the other to leave. It requires the same ingredients as simple desertion: animus, factum, and absence of just cause. (Para 48 )
Judgement
AYYANGAR, J.- (on behalf of Sinha C. J., Das A. C. J. Raghubar Dayal J. and himself.)This is an appeal against the judgment of the High Court of Bombay reversing the judgment and decree of the City Civil Court at Bombay by which a decree for judicial separation granted by the trial Judge was reversed and it comes before us on a certificate of fitness granted by the High Court under Art. 133 (1) (c) of the Constitution.
2. The appellant - The husband - filed a petition in the City Civil Court, Bombay under Sec. 10 (1)(a) of the Hindu Marriage Act, 1955 (which we shall hereafter refer to as the Act) praying for a decree against the respondent - his wife, for judicial separation on the ground that in terms of that provisions she had "deserted him for "a continuous period of not less than two years immediately preceding the presentation of his petition . The petition was presented on September 20, 1956 and the material allegation was that the wife had left the matrimonial home on February 26, 1954 and had not thereafter come back to him and that this constituted "desertion within the meaning of the provision just cited. The learned trial Judge held that the appellant had established to the satisfaction of the Court that the respondent-wife had left the matrimonial home with the intention of permanently breaking it up and that such desertion continued during the requisite period of two years and in consequence granted the decree for judicial separation, as prayed for. The wife preferred an appeal to the High Court and the learned Judges disagreeing with the finding of the learned trial Judge that the leaving, by the wife, of the matrimonial home was with the intention of deserting the appellant, reversed the decree of the trial Judge and directed the dismissal of the appellant s petition with costs. It is the correctness of this reversal that is canvassed in the appeal before us.
3. Even at the outset we might state that the decision of the appeal does not depend so much on any substantial question of law but rather on an appreciation of the facts on two matters on the basis of which the learned Judges of the High Court have decided the case against the appellant: (1) whether the appellant had established that the respondent had an irrevocable able determination to break up the matrimonial home when she admittedly left the petitioner of February 26, 1954 and did not return to him thereafter, it being common ground that the onus of proving this to the reasonable satisfaction of the Court was on the appellant, and (2) whether the respondent had a justifiable cause for not returning to the husband, the existence of which prevented her admitted absence from the matrimonial home from constituting "desertion so as to serve as the foundation for an order for judicial separation under S. 10(1)(a) of the Act.
4. Before, however, dealing with these two points which from the crux of the matter in dispute in the appeal, it is necessary to summarise, briefly, the history of the married life of the parties. The parties are Sindhi Hindus of the Bhai Bund community. The appellant is a practising doctor while the respondent is said to have had read up to the High School classes. While the appellant s father and his family were people of but moderate means, the respondent s father was a very affluent businessman - his business spreading over almost the entire South East Asia. He had business houses in Singapore, Djakarta, Hong Kong, Manila etc. Besides, while the appellant and his parents appear to have been of an orthodox and conservative outlook and bent of mind, the respondent and her parents apparently did not set much store by orthodoxy, and were liberal and modern. It looks to us as if it is possible that the trouble between the spouses was in part at least due to these variations.
5. The parties were married at Hyderabad in Sind (now in Pakistan ) on November 11, 1946. The appellant was living with his father and mother and his two s
