Mukesh Bhagwandas Ganatra vs Priti Mukesh Ganatra
2002 Latest Caselaw 1362 Bom

JUDGMENT

V.C. Daga, J.

1. This case affords a further illustration, if illustrations were required how ego of two neo rich families resulted in matrimonial casualty in respect of parties to the appeal. The source of this appeal is a judgment and decree dated 23rd May 2000 passed by the Family Court, Bandra rejecting M. J. Petition No. A-1019 of 1993 alleging cruelty and desertion against the respondent/wife.

FACTS-IN-BRIEF

2. The parties to the appeal belong to Kachhi Lohana (Gujarati) community. The appellant and respondent both come from the culture of joint family. The appellant got engaged with the respondent on 6th September 1987. In the month of December 1987, father of the appellant and respondent along with appellant with one Mr. Khot, an engineer by profession had been to U.K., U.S.A. and other countries to select some machineries to start the industrial unit owned by the father of the appellant at Bandra, which was lying closed since long.

3. The marriage between the appellant and respondent was solemnised on 28th January 1988 according to Hindu vedic rights and custom at Bombay. The couple has no issue. After marriage, parties cohabited as husband and wife. It seems that some differences cropped up between the parents of the parties. Both of them tried to claim milage over each other. Both of them started asserting their authority over the other. Ultimately, they pushed their children to fight their matrimonial litigation in the Family Court with full encouragement to climb the appellate ladders of the Court to the extent possible.

4. The respondent being the only daughter, her father used to show some financial income in her name, which made her an assessee under the Income Tax Act. That is how the respondent is one of the assessees at the instance of her father with other members of her father's family. Her father, by way of marriage gifts, gifted T.V., jewellery sets and other valuable articles to the appellant in the marriage. It appears that one of the neighbours of the appellant suffered income-tax raid in the month of October 1988. The father of the appellant apprehending the similar raid or to avoid any future problem from the Income Tax Authorities insisted for respondent's income tax papers and file containing previous returns and assessment orders and desired to have the Maruti car transferred in the name of his son, the appellant which his daughter-in-law, the respondent was using. This insistence from one end and resistance from the other appears to have spoiled the relations between the parents of the parties to the appeal and appears to be the root cause of the matrimonial litigation between the parties. It is said blood is thicker than water but in this mundane world, property is thicker than blood.

5. On 2nd January 1989 the respondent's father greeted her father-in-law on the eve of the New Year. At that time her father-in-law asked about the income-tax file and progress with respect to the transfer of Maruti car. It appears that due to the death of the uncle of the respondent/wife and maternal grandfather, her father could not hand over income tax file till the end of December 1988. The respondent's father appears to have told the father of the appellant to wait till end of March 1989. This particular event appears to have hurt the ego of the father of the appellant, which appears to have taken foul turn and the relations between the two families became strained. It resulted in calling upon the respondent's father to take back all the ornaments and other valuable gifts gifted to the appellant at the time of his marriage. One or two more instances referred to hereinafter pushed the appellant/husband to initiate matrimonial litigation resulting in allegation of cruelty and desertion against the respondent/wife and prayer for decree of divorce on these counts.

6. The Family Court after getting the pleadings of the parties on record, amongst others; framed two main issues and answered both of them against the appellant/husband. The Family Court held that the appellant/husband failed to prove that the respondent/wife had treated him with cruelty and that she had deserted him for a continuous period of two years immediately preceding the presentation of the petition. All other incidental issues were answered in negative; i.e. against the appellant/husband. In the result, the Family Court refused to grant decree of divorce. Petition seeking divorce came to be dismissed.

7. It is against the above judgment and decree of the Family Court, the appellant/husband has filed this appeal. Parties were heard in extenso. Attempt to reconcile differences between the parties was made. The father of the appellant/husband was interviewed; who refused to persuade his son, the appellant, for any amicable settlement. Left with no alternative, we were called upon to hear and decide this matter on its own merits.

THE ISSUE

8. In the aforesaid set of facts, the issue which needs consideration is as under:

Whether the Family Court was justified in dismissing the petition filed by the appellant seeking to dissolve marriage by decree of divorce on the grounds alleged in the petition ?

LEGAL SCENARIO

9. Before proceeding to consider the aforesaid question it would be necessary to notice the legal scenario on the issues with which we are concerned in this appeal. Treating the petitioner with cruelty is one of the grounds for divorce contemplated under Section 13(1)(ia) of the Hindu Marriage Act, 1955 ("Act" for short). 'Cruelty' has not been defined under the Act but in relation to matrimonial matters it is contemplated as a conduct of such type, which endangers the living of the petitioner with the respondent. 'Cruelty' postulates a treatment to the petitioner with such cruelty so as to cause reasonable apprehension in his or her mind that it would be harmful or injurious for the petitioner to live with the other party.

10. 'Desertion' is another ground pressed into service for the purpose of seeking divorce under the Act. It means the intentional permanent forsaking and abandonment of one spouse by the other without that of other's consent and in absence of reasonable cause. In other words, it is a total repudiation of the obligations of marriage. 'Desertion' is not the withdrawal from a place but from a state of things. 'Desertion' therefore, means withdrawing from the matrimonial obligations i.e. not permitting or allowing and facilitating the cohabitation between the parties. The proof of desertion has to be considered by taking into consideration the concept of marriage which in law legalises the sexual relationship between man and woman in the society for the perpetuation of race, permitting lawful indulgence in passion to prevent licentiousness and for procreation of children. Desertion is not a single act complete in itself, it is a continuous course of conduct to be determined under the facts and circumstances of each case. After referring to a host of authorities and the views of various authors, the Apex Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati, held that if a spouse abandons the other in a state of temporary passion, for example, anger or disgust without intending permanently to cease cohabitation, it will not amount to desertion. It further held : (AIR pp. 183-184, para 10) "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. Here a difference between the English law and the law as enacted by the Bombay Legislature may be pointed out. Whereas under the English law those essential conditions must continue throughout the course of the three years immediately preceding the institution of the suit for divorce, under the Act, the period is four years without specifying that it should immediately precede the commencement of proceedings for divorce. Whether the omission of the last clause has any practical result need not detain us, as it does not call for decision in the present case. 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 separation, 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 coexist. 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 or 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 poenitnetiae thus provided by law and decide 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 the 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 and 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."

11. Following the decision in Bipinchandra case; the Apex Court again reiterated the legal position in Lachman Utamchand Kirpalani v. Meena, by holding that in its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that of other's consent, and without reasonable cause. For the offence of desertion so far as the deserting spouse is concerned, two essential conditions must be there (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. For holding desertion as proved 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.

12. To prove desertion in matrimonial matter it is not always necessary that one of the spouses should have left the company of the other as desertion could be proved while living under the same roof. Desertion cannot be equated with separate living by the parties to the marriage. Desertion may also be constructive which can be inferred from the attending circumstances. It has always to be kept in mind that the question of desertion is a matter of inference to be drawn from the facts and circumstances of each case.

CONSIDERATION

On Cruelty :

13. Having heard the parties at length, the first question which needs consideration is: whether the appellant/husband proves that the respondent/wife has treated him with cruelty. In this behalf, the case sought to be made out by the appellant is that, at the behest of the respondent, her father threatened the appellant/husband, and members of his family to teach them a lesson of life for their middle class mentality, and for thwarting or discouraging the respondent/wife in her desire to settle down with her parents along with her husband, the appellant. The appellant has also alleged that the respondent's father at the behest of the respondent used to make anonymous and threatening telephone calls on telephone Nos. 370159 and 379118 at their petrol pump located at N. M. Joshi Road, Mumbai which compelled the appellant's father to write a letter to the Divisional Engineer, Byculla Telephone Exchange to keep their telephones under surveillance and observation to find out the identity of the persons making the anonymous calls. It is further alleged that other family members were also harassed by the father of the respondent/wife; which, according to the appellant/husband, led to the complaint dated 1st August 1989 addressed to the Commissioner of Police, Mumbai with copies thereof to the Social Security Services, Crime Branch, C.I.D. at Crawford Market, Mumbai. It is further alleged that certain anti-social hired elements were also used to pass on threats to the family members of the appellant/husband including threat of initiating proceeding-under section 498A of the Indian Penal Code. It is further alleged that the family members of the appellant/husband had to obtain anticipatory bail on 15th January 1990 from the Sessions Court, Greater Bombay. Similar types of allegations were repeated in the petition filed before the Family Court. The respondent denied all these allegations in her written statement. With the aforesaid pleadings, the Family Court framed issues in this behalf and parties were put to trial so far as these issues are concerned.

14. With the aforesaid pleadings and issues or record in this behalf, if one turns to the evidence of the appellant/husband, no oral evidence is to be found in support of the pleadings. The appellant/husband in his deposition on oath (page 142) tried to make allegations of cruelty against the respondent/wife. He deposed that in the month of May 1989, he was required to lodge complaint at Matunga Police Station as the respondent and her parents were administering threats since he did not submit to their desire to shift from his parent's house to the house of his father-in-law and refused to be a 'Ghar Jamai'. In para-6 of the evidence of the appellant/husband, there is a passing reference of having received notices from the Social Security Branch, C.I.D., Mumbai so as to reconcile the differences between the parties and three successive meetings having taken place in the police station. None of the complaints alleged to have been made to the telephone department and/or to the Crime Branch and/or to other Social Security branch have been proved by the appellant/husband. There is absolutely no whisper so far as hiring of anti-social elements or Gunda elements by the father of the respondent/wife at her instance.

15. He also deposed on oath that the respondent had threatened him with false complaint under Section 498A of Indian Penal Code and that his family members were also threatened, which compelled him to take anticipatory bail from the Sessions Court, Mumbai. He also deposed that he was required to address the letter to the Mulund Police Station and was also required to lodge complaint with the N. M. Joshi Road Police Station for the alleged threats alleged to have been administered to him on telephone. He was cross-examined by the respondent/wife and suggestions were also given to the appellant/husband that the allegations made in this behalf were absolutely false which were of course denied by him. The respondent/wife was examined after the evidence of the appellant/husband and she was allowed to be cross-examined. In her cross-examination, not a single question was put to her that at her instance threats were administered or that at her instance anonymous calls were made at the petrol pump owned by the appellant's father. Absolutely, no attempt was made during the cross-examination of the respondent/wife to confront her with this material or with these circumstances alleged against her so as to establish the allegations made in the petition and to prove that she was responsible for the threats alleged to have been administered either by her father or some other persons. It is thus clear that not a single incriminating circumstance was put to her when she was under cross-examination. No person from the Police Department was examined, no complaint has been proved in accordance with law. No person from the Telephone Department was summoned so as to establish that at any point of time request was made to keep the telephone under vigilance so as to identify the person making anonymous calls on telephone. No other witnesses were examined to prove the facts alleged in the petition and/or in support of the act of cruelty alleged to have been practiced by the respondent/wife, with the result, it can safely be said that there is no evidence on record to support or establish the allegations of cruelty. In the aforesaid premises, it is absolutely clear that no facts alleged in the petition are established by the appellant/husband. No case is made out to establish any act on the part of the respondent/wife constituting cruelty. In this view of the matter no fault can be found with the findings recorded by the Family Court rejecting the petition on this ground. The trial Court, thus, has rightly concluded that the appellant/husband has failed to prove that cruelty alleged has been practiced by the respondent/wife. The learned counsel for the appellant though tried to assail the findings of the Family Court in this behalf but could not take his submissions to the logical end and went to the extent of conceding that no case could be said to have been made out by the appellant so far as the act of cruelty alleged to have been practiced by the respondent/wife is concerned but still he desired to have findings on merits of this issue from this Court.

16. The absence of material as also absence of attempt to establish the allegations made against the respondent/wife on this count is sufficient to establish that the appellant/husband tried to make out false case against the respondent/wife. Had there been any truth in the pleadings pleaded in the petition, the appellant/husband would have at least brought adverse material to the notice of the respondent/wife by confronting her with the same when she was under cross-examination. As a matter of fact, the alleged complaints alleged to have been made to the Police Department or the Telephone Department or to the Social Security Services Branch of the Police or to the Police Commissioner are self-serving documents. There is absolutely nothing on record to implicate respondent/wife so as to draw any adverse inference against her. As a matter of fact, the creation of self-serving documents as also an act of tape-recording her conversation with him; which took place on telephone are sufficient to indicate that all the while the appellant/husband was trying to create some evidence against the respondent/wife so as to make out a case for divorce. Under these circumstances, we are of the confirmed view that the appellant/husband cannot be allowed to take advantage of his own wrong.

17. We are in agreement with the findings recorded by the Family Court in this behalf and for the reasons recorded hereinabove coupled with the reasons recorded by the Family Court in the impugned judgment we approve and confirm the findings of the Family Court on this count.

On Desertion:

18. Having negatived the ground of divorce under Section 13(1)(ia) of the Act, now we proceed to consider whether the appellant has made out any case under Section 13(1)(ia) of the Act so as to prove that the respondent/wife has deserted him continuously for not less than two years immediately preceding the presentation of the petition. The learned counsel for the appellant in his usual persuasive manner took us through the rival evidence and the findings recorded by the Family Court. He strongly emphasized that the Court below was not justified in recording negative findings and thereby holding that the appellant/husband has failed to prove desertion by the respondent/wife. The learned counsel for the respondent with the similar vehemence tried to defend the impugned order and contended that the Family Court was perfectly justified in recording negative finding for want of legal proof to prove desertion by the respondent/wife. As already noticed hereinabove, 'desertion' means the intentional permanent forsaking and abandonment of one spouse by the other without other's consent and without reasonable cause. In other words, it is a total repudiation of the obligations of marriage. Desertion is not a single act complete in itself. It is a continuous course to be determined under the facts and circumstances of each case. Viewed from these angles, this Court will have to appreciate whether a factum of separation and intention to bring cohabitation to permanent end (animus deserendi) with further two elements which are essential so far as deserted spouse is concerned, namely, absence of consent and absence of conduct giving reasonable cause to the spouse to leave the matrimonial house to form the necessary intention. The burden of proof is always on the shoulders of the person making allegation of desertion. He has to prove these elements. The Court trying the petition has to draw inference from the facts and circumstances of each case based on documentary and oral evidence available on record.

19. On the above canvas of the law, we propose to examine the facts and circumstances involved in the case in hand. Having drawn sketch of both the families and having extracted the facts right from the stage of honeymoon of the couple, now we proceed to take stock of the matrimonial life of the parties. The petitioner tried to make out a case that the father of the respondent/wife became possessive of his son-in-law and tried to exert his influence over him and, at time; went to the extent of gifting him costly presents with other gifts including gifts in cash on diverse occasions, whenever he wished to visit his in-laws. The petitioner/appellant further made out a case that he took exception to this act of his father-in-law and canvassed that the said behaviour of the appellant/husband hurt the respondent/wife, with the result, she also started taking exception to the behaviour of the appellant in this behalf. In the wake of these circumstances, the tension and disturbance between two families started growing. The petition further makes out a case that the respondent's father accompanied with his close relatives (mentioned in para-9 of the petition) came to the residential place of the appellant/husband at Dadar on 5th January 1989 and tried to pick up quarrel with him and his parents and insisted for return of gifts, presents, clothes, ornaments gifted in the marriage. It is further alleged that the respondent/wife had a pre-intimation of the visit of her father; otherwise, she could not have immediately collected and brought all the articles, gifts and ornaments for being given to her father; who immediately collected all these articles and left in a tempo giving threats to the appellant/husband and his parents that they would be physically dealt with and harmed in future. The appellant claims to have protested this indecent behaviour of the father of respondent/wife which resulted in some hot talks between the parties to the appeal, wherein the respondent/wife tried to justify that she did not know anything about the visit of her father.

20. The second incident alleged in the petition relates to 10th January 1989. The appellant/husband tried to make out a case in the petition that on 10th January 1989, on the pretext that her grandmother was not keeping well, the respondent wife went to her parents place along with her belongings and since then she is residing with her parents at Mulund. The appellant/husband has further pleaded that the respondent's grandmother died in or about April 1989. His parents made repeated telephone calls to the respondent/wife and her parents and requested her to return to the appellant's place but she ignored the said repeated requests and deliberately did not return to the matrimonial home. This act of the respondent/wife was being alleged as deliberate act and omission on her part to bring permanent end to the cohabitation between the parties. It is thus sought to be made out that the respondent/wife has deserted the appellant/husband without reasonable cause and without his consent and, in fact, against his desire. He further tried to make out a case in the petition that he made all reasonable efforts to bring her back from her parents' place but she refused to return. It is thus alleged that the respondent/wife is deliberately ignoring the matrimonial obligations with a view to put an end to it permanently.

21. The third incident sought to be quoted in the petition relates to the absence of respondent/wife on their first marriage anniversary which was on 28th January 1989. On this day she was not available in Bombay as she was with her parents on the organized tour to South India. The aforesaid three instances are the backbone of the case sought to be made out by the appellant/husband so as to allege that the respondent/wife has deserted him for a continuous period of not less than two years immediately preceding the presentation of the petition.

22. With the aforesaid pleadings on record pleaded by the appellant/husband, now we propose to turn to the written statement filed by the respondent/wife, wherein she denied all adverse allegations made against her by the appellant/husband. She pleaded that she never wanted to put an end to the cohabitation between the parties. It was further pleaded that sometime in the month of November 1988, the appellant/husband and his father put a proposal to hand over the income tax file and transfer the vehicle in the name of the appellant as the appellant was using the vehicle right from the date of his marriage. On the request made by the respondent her father had agreed to transfer the car in her name and hand over the file containing all the income tax papers after March 1989 i.e. after the end of financial year. But this was not acceptable to the father of the appellant/husband. She further pleaded that on 5th November 1989 appellant's father to show his protest continuously made several telephone calls to one Shri Gopalji Tanna who was known to both the families and insisted upon the parents of respondent (wife) to take away all the articles, jewellery and gifts gifted in the marriage who, in turn, informed the respondent/wife about various telephone calls made by her father-in-law. She also pleaded that her father had also received several telephone calls from Gopalji Tanna, Jayesh Thakkar and Majithia informing him that the appellant's father was insisting that he should take back all the articles, ornaments, gifts etc. gifted in the marriage. She also brought one incident on record wherein the appellant had caused injury to his own hand and was required to be taken to the hospital. The respondent's father, on being informed by her on telephone, went to see the appellant, his son-in-law in the hospital, where the appellant's brother created nasty scene and even used physical force and tried to assault the family members of the respondent/wife. She also brought on record that the appellant's father had already arranged for a tempo and forcibly loaded the said tempo with all gifted articles such as T.V., clothes and forced her father to take away these articles; which her father was reluctant to remove from the matrimonial home of the respondent/wife. The respondent stated in the written statement that the appellant/husband behaved very arrogantly with her father and other family members and tried to assault them and therefore, the respondent had to request them not to stay, there any more. Thereafter, she was totally kept isolated in the matrimonial house. Nobody used to talk to her at home.

23. On 9th January 1989, the respondent/wife was informed about serious ill health of her grandmother. In spite of this, the appellant/husband and his parents did not allow her to go to her father's house though her grandmother was desperate to meet her. Consequently, some of the respectable members of the community, who were known to both the families, namely, Shri Visanjibhai and Shri Jamnadasbhai requested the appellant's father to allow the respondent (wife) to go to her parents house to see her grandmother who was on death bed but the appellant's father refused to accede to their request.

24. On 10th January 1989, however, with the permission of the appellant and his father, the respondent went to her parent's place to see her grandmother. The appellant/husband assured her that he will bring her back after couple of days but thereafter he failed to abide by his promise and in spite of various calls by the respondent/wife and her parents, appellants failed to bring her back and forced her to stay with her parents thereafter. These are the allegations made in the written statement so far as the incidents of 9th and 10th January 1989 are concerned. So far as police complaints and all other threats are concerned, the respondent/wife denied the said story put up by the appellant/husband in toto. She pleaded complete ignorance about these instances quoted in the petition.

25. With the aforesaid pleadings on record the parties led their evidence. The appellant/husband examined himself and closed his evidence. He deposed on oath that in the month of March 1988 the respondent/wife took with her all gold ornaments and other jewellery and went to her father's house and did not come back with her jewellery. She stayed at Mulund with her parents for few days and thereafter returned back to her matrimonial house. He also deposed about spreading foul rumours about him amongst all relatives by the respondent/wife and her father. The story sought to be put up in the oral evidence about taking away of the ornaments in the month of March 1988 is not be found in the petition. Even the story about foul rumours which were being spread amongst the relatives is also not to be found in the pleading. Therefore, the evidence in this behalf is without any pleadings. So far as the evidence about the incident of 5th January 1989 causing injury to his hand is concerned, a picture is sought to be projected that the respondent/wife told the appellant/husband that she would go to her father's house, if he did not agree to her terms and conditions, with the result, he got upset and disturbed and could not control himself and, in the fit of anger, banged his hand on the window glass frame and got injured and was required to be taken to K.E.M. Hospital for stitches. This reason sought to be put forth for the incident dated 5th January 1989 is also not to be found in the pleadings of the appellant. He further stated in his evidence that one Jayesh Thakkar, his brother-in-law threatened him and his father with dire consequences. According to him, this incident had happened in the lift. This part of the evidence is also without any pleadings in support thereof. He further stated on oath that the respondent/wife took out all the valuable articles, ornaments and jewellery from her cupboard and handed over to her parents and brother and all these articles were removed from his house. There is variance between the pleadings and evidence of the appellant/husband even on this count.

26. So far as incidence of 10th January 1989 is concerned, the appellant/husband deposed that since the grandmother was serious the respondent/wife took his permission and went to her father's house assuring him to return by evening. He further deposed that from time to time he tried to contract her but thereafter she did not return. On 24th January 1989, when he talked to her on telephone he requested her to come back. In turn she had also agreed to return on 28th January 1989 the day on which the marriage anniversary was to fall. He further deposed that by 26th January 1989, on coming to know that respondent/wife had already left for Bangalore with her parents and cousin, he got upset seeing this attitude of the respondent/wife refusing to be with him on the day of their first marriage anniversary. Thereafter he claims to have tried on many occasions to talk to her on phone and requested her to come back but she did not return. On the contrary, he started getting threatening calls from all quarters. He further deposed that he made recording of threatening calls on cassette. But this part of the pleadings is not to be found in the petition. He further deposed that when he had talked with his wife, after hearing her voice, he recorded entire conversation between them, and produced the cassette wherein the conversation with his wife was recorded by him. He also produced the tape recorded conversation in the Court in the form of script along with the cassette. On the basis of this evidence he tried to prove that the respondent/wife was not ready to join cohabitation and she intended to put an end to her marital life against the desire of the appellant/husband for all time to come. The appellant husband was cross-examined at length. In the cross-examination, he was made to admit that he could not assign any reason as to why he did not mention in his petition that on 9th March 1988 the respondent/wife took with her all her gold ornaments and jewellery and went to her parents house and kept the same with them. No explanation was offered by the appellant/husband for this omission in his pleadings. He also admitted in his cross-examination that he never visited her grandmother after she left matrimonial home. He also admitted that even after the death of her grandmother on 2nd April 1989 none of the family members from the appellant's side attended her funeral. Not a single member from the family of the appellant attended condolence meeting. It would therefore, be clear that the attitude of the appellant/husband was not to cohabit with the respondent/wife or keep any relations with any of her family members and attempt was to sever relationship with the respondent's family. It is really unnatural that nobody should attend funeral of her grandmother and on the top of it refuse to visit the house of the respondent/wife or to see her parents, especially, when there was a death in their family.

27. So far as the incident of 5th January 1989 is concerned, ample evidence is on record to show that it is the father of the appellant/husband who insisted that respondent's father should collect all the gold ornaments and valuable articles. This attitude was the outcome of anger and ego since the respondent's father did not transfer car in the name of the appellant/husband and could not hand over the income tax papers. The telephonic talk which was recorded by the appellant/husband gives one-sided picture; in view of the fact that the appellant himself was very cautious while talking on telephone because he was knowing well that the conversation between them was being recorded by him for being used in the Court, while respondent/wife was completely unaware of the fact that her husband had trapped her and was recording her telephonic talk with him. As a matter of fact, this piece of evidence gives a clear picture as to as mind of the respondent/wife is concerned, whereas it does not reflect clear mind of the husband. This piece of evidence, if read as a whole, would demonstrate that for more than 10 times during this two hours talk the respondent/wife requested, persuaded and insisted upon her husband, the appellant, to meet her at a neutral place so as to sort out differences between them, if any. But all the while appellant/husband was avoiding her request and did not agree to meet her. His negative attitude can be seen from the tape recorded talk produced on record. In this view of the matter, it cannot be said that the respondent/wife desired to put an end to the marital life permanently. The entire script of the talk between the appellant/husband and respondent/wife shows her readiness and willingness to join her husband and to revive the matrimonial relationship but all the while there was negative approach from the side of the appellant/husband. He thus cannot be allowed to take advantage of his own wrong. He failed to prove absence of his conduct giving reasonable cause to the leaving spouse. As a matter of fact, from the entire evidence, it appears that he and his parents had erected a situation wherein respondent/wife was forced to stay with her parents and away from her husband. It seems that she was ready and very much keen to join her husband and discharge her matrimonial obligations. In the teeth of evidence available on record, it cannot be said to be a case of desertion by the respondent/wife.

28. So far as incident of 10th January 1989 is concerned, it is obvious that since nobody from the appellant's side attended funeral of the grandmother of the respondent/wife and nobody visited the family of the respondent father for offering condolences, this attitude naturally further spoiled the relationship between the two families and matrimonial relationship between the parties to the appeal. Can it be said that the respondent/wife is responsible for this attitude adopted by the appellant/husband. If this was the attitude adopted by the appellant/husband, then, in that event, can it be said that the respondent/wife wanted to put an end to the matrimonial relationship between the parties permanently. The answer ought to be in negative. By no stretch of imagination it can be said that there was any intentional permanent forsaking and abandonment of matrimonial relationship by the respondent/wife without consent of the appellant/husband and without reasonable cause. There is absolutely no evidence to show that the respondent/wife wanted to repudiate the marriage obligations for all the time to come. It is the appellant/husband who tried to keep himself away from the respondent/wife for one or other reason. If that be so, he cannot be allowed to take advantage of his own wrong and insist for decree of divorce on this count.

29. The Apex Court in the case of Lachman v. Meena (supra) has indicated the nature of proof that is required to prove the ground of desertion. It reads as under:

"Heavy burden lies upon a petitioner who seeks relief on the ground of desertion to prove four essential conditions, namely, (1) the factum of separation; (2) animus deserendi (3) absence of his or her consent; and (4) absence of his or her conduct giving reasonable cause to the deserting spouse to leave the matrimonial home. The offence of desertion must be proved beyond any reasonable doubt and as a rule of prudence the evidence of the petitioner shall be corroborated. In short the proof required in a matrimonial case is to be equated to that in a criminal case."

The degree of proof is not merely one of preponderance of probabilities, but proof beyond reasonable doubt. In the circumstances, we are of the clear view that the appellant/husband has failed not simply but miserably in proving desertion. In fact, it cannot even be said that the respondent/wife without any reason had remained living separately and, on the other hand, circumstances indicated that she had sufficient justification for her living separately. When such is the situation, the inference of desertion which requires deliberate conscious living apart, can hardly be drawn. The trial Court was justified in not granting a decree of divorce on the ground of desertion.

30. Lastly, it was contended by the learned counsel for the appellant/husband that the marriage has irretrievably broken down and is dead for all practical purposes. We do not agree with this submission. Mere ground that the marriage is broken down for all practical purposes alone cannot be a ground for grant of decree of divorce assuming it to be true. We feel that if the cover of the respective parents is removed, then both the parties can very well come together. We do not find that his marriage cannot survive. In this view of the matter, appeal is liable to be dismissed.

In the result, appeal is dismissed with no order as to costs.