Ms. Santosh Kumari vs Shri Shiv Prakash Sharma
2001 Latest Caselaw 681 Del

ORDER

M.S.A.Siddiqui, J.

1. This appeal under Clause 10 of the Letters patent is directed against the judgment dated 30th April, 1991 of a Learned Single Judge of this Court in FAO No.76/91, whereby dismissing the appeal of the appellant-wife, the judgment and decree of the Additional District Judge, Delhi dated 18th March. 1991 granting decree of divorce to the respondent-husband under Section 13(1)(ib) of the Hindu Marriage Act, 1955 (hereinafter called `the Act') was affirmed.

2. There appears to be no dispute that the parties were married on 23rd June, 1985 in accordance with Hindu law. On 9th November, 1985, the appellant left her matrimonial home. On a petition being filed by the respondent under Section 9 of the Act of restitution of conjugal rights, parties started to live together from 9th November, 1986 and they did so till 3rd December, 1986. The appellant left the matrimonial home again on 4th December, 1986. Thus, on broad outlines, the parties did not differ but, as is normal in matrimonial disputes, on details they have divergent views. However, on 13th November, 1987 respondent filed a petition under Section 13 of the Act for divorce on the ground of cruelty and desertion. The learned Trial Judge rejected the plea of cruelty, being of the view that the evidence adduced by the respondent deserved rejection besides being insufficient to prove that the respondent had actually been treated by the appellant with cruelty. But on the evidence led by the parties, the learned Trial Judge concluded that the appellant had deserted the respondent without reasonable cause and that it was an intentional permanent forsaking and abandonment of the obligations of marriage on her part. He, therefore, granted decree of divorce under Section 13(1)(ib) of the At in favor of the respondent. Aggrieved thereby, the appellant challenged the said judgment and decree by filing an appeal , which was rejected by the learned Single Judge vide impugned judgment dated 30th April, 1991.

3. Now it is required to be seen whether the evidence led by the respondent stands the test of requirement of law with regard to desertion. Needless to emphasis that the onus was on the respondent to prove beyond reasonable doubt that he was not guilty of such conduct which provided a reasonable cause to the appellant-wife to leave the matrimonial home, and if the appellant was living separately, he was not in any way, taking advantage of his wrong as envisaged in Section 23 of the Act. Desertion in that context came to be interpreted and elaborated by the Supreme Court in Lachman Utamchand v. Meena, . It was held that in its essence desertion meant the intentional permanent forsaking and abandonment of one spouse by the other without the other's consent, and without reasonable cause. It was taken as a total repudiation of the obligations of marriage. The offence of desertion was said to commence when factum of separation and animus deserendi co-existed, it being not necessary that they should commence at the same time. But, ultimately at one point of time, the animus deserendi had to co-exist.

4. In Bipin Chander Jaisinghbhai Shah v. Prabhawati, 1956 SCR 838, it was held that the essential conditions for the offence of desertion, so far as the deserting spouse is concerned, are (I) the factum of separation and (II) the intention t bring cohabitation permanently to an end (animus deserendi); and as regards the deserted spouse the elements are (i) absence of consent and (ii) absence of conduct giving a reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. In this context, we may usefully excerpt the following observations of their Lordships:-

``.....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 co-exist. 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 year period and the Bombay Act prescribes 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 poenitentiae thus provided by law and decides 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 ad 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 any other matrimonial offence, beyond all reasonable doubt..."

5. It emerges form the said authority that leaving of matrimonial home is not a necessary criterion for determining the desertion. This concept was further elaborated in Lachman Utamchand v. Meena (supra) and Rohini Kumari v. Narendra Singh, . Thus, desertion is not withdrawal from a place but from a ``State of things". It is not a specific act but a course of conduct which exists independently of its duration, but as a fact on which a petition for divorce may be founded, it must exist for a continuous period of at least two years immediately preceding the presentation of the petition. One of the essential conditions for success in a suit for divorce grounded upon desertion is that the deserted spouse should have been willing to fulfill his or her part of the matrimonial duties. As indicated earlier, the burden was on the respondent to prove that the alleged desertion without reasonable cause subsisted throughout the statutory period.

6. The question is whether the appellant's leaving her matrimonial home on 9th November, 1985 is only consistent with having deserted her husband (respondent), in the sense that she had deliberately decided permanently to forsake all relationship with her husband with the intention of not returning to consortium, without the consent of the husband and against his wishes. That is the respondent's case. Before attempting analysis of the rival contentions of the parities, the decision of the Supreme Court in Swarajya Lakshmi v. Dr. G.G.Padma Rao, may be referred to, wherein it has been observed that ``divorce is not generally favored or encouraged by courts and is permitted only for serious and grave cases". It is an admitted position that the appellant left her matrimonial home on 9th November, 1985 and in the year 1986 the respondent filed a petition for restitution of conjugal rights (HMA case No.220/86) and during pendency of the said petition, i.e., on 9th November, 1986, the parties reconciled their differences as a result whereof the respondent took the appellant to be matrimonial how. It is also undisputed that on 21st November, 1986, the Additional District Judge, dismissed the said petition by the following order:-

``Both the parties present in the court. Both the parties are living together. Therefore, the petition is dismissed having become infructuous. With this order, no order as to costs. Consigned to record room.

     Sd.Shiv Prakash                    Sd. K.S.GUPTA
     21.11.1986                           ADJ Delhi"
  

 

7. It is the common case of the parties that the appellant lived with the respondent for the period from 9th November, 1986 to 3rd December, 1986. On 4th December, 1986, the appellant again left her matrimonial home and on 13th November, 1987, the respondent filed the divorce petition. Learned Trial Judge has held that the said period (from 9th November, 1986 to 3rd December, 1986) during which the parties lived with each other shall count as a part of the period of desertion. Learned Single Judge has also taken the same view by holding that the period of desertion has to be reckoned from 9th November, 1985 when the appellant first left the matrimonial home. It needs to be highlighted that neither the learned Trial Judge nor the learned Single Judge has held that he said period of re-union was stratagem to interrupt continuous period of desertion. Learned Single Judge has misdirected himself in taking an erroneous view that this is a case of condensation of the offence of desertion. In arriving at the said conclusion, he has failed to notice that on 9th November, 1986 when the appellant joined the society of her husband, the statutory period of two years had not elapsed to make the matrimonial offence of desertion complete. Thus, when the offence of desertion was itself incomplete, question of its condensation does not arise. In our opinion, this is a case of termination of desertion. In this context, it is significant to mention that in the case of Bipin Chander Jaisinghbhai Shah (supra) the apex court has quoted the following observations of Pollock, M.R. in Thomas v. Thomas [1924] P.194 with approval:-

``Desertion is not a single act complete in itself and revocable by a single act of repentance."

8. It has to be borne in mind that desertion continues until it is terminated. Termination may take place by the fact of return of the deserting spouse or by supervening intention to return with an approach to the deserted spouse with a view to resumption of life together or by a supervening consensus. As noticed earlier, on 9th November, 1985, i.e., after four and half months of her marriage the appellant left her matrimonial home and thereafter the respondent filed a petition under Section 9 of the Act for restitution of conjugal rights and during pendency of the said proceedings they reconciled their differences in consequence of which the appellant joined the society of her husband on 9th November, 1986, which ultimately resulted in dismissal of the said petition. This clearly shows that both recognised the matrimonial relationship as continuing even though they were living separately. That rules out animus deserendi. Although the factum of separation was there but no animus appeared on behalf of the appellant to desert her husband permanently forsaking the matrimonial bond. However, on 9th November, 1986, when the appellant joined the Society of her husband, the statutory period of two years had not elapsed to make the matrimonial offence of desertion compete. As noticed earlier, neither the learned Trial Judge nor the learned Single Judge has held that the said re-union was a stratagem to interrupt the continues period of desertion. That being so,m the alleged desertion of the respondent came to an end on 9th November, 1986, when the appellant resumed her matrimonial home with all the implications of marital life. In the case of Bipin Chander Jaisinghbhai Shah (supra), the following legal position summarised in Halsbury's Laws of England has been quoted with approval:-

``Desertion is not the withdrawal from a place but from a state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, `the home'."

9. It is not merely the physical putting of the tow spouses together at a point of time which would make cohabitation but there being in a ``state of things" the entry which ends up desertion. In the instant case, neither the learned Trial Judge nor the learned Single Judge attempted to find out as to who was responsible for disruption of that `state of things'. Admittedly, the appellant left her matrimonial home after four and half months of her marriage. It is unnatural for a newly married bride to start planning for dissolution of her marriage without any ostensible reason. Under the circumstances, we are inclined to hold that something must have happened so as to force her to leave her matrimonial home. However, the learned trial Judge had simply noted the grievance of the appellant of her leaving the matrimonial home due to maltreatment of her mother-in-law. It is obvious that the appellant does not accuse the husband for having turned her out of his house. This circumstance clearly shows that there was no animus on behalf of the appellant to desert the husband permanently forsaking the matrimonial bond and abandonment of the obligations of marriage on her part.

10. We may mention at the cost of repetitions that the burden was on the respondent to prove that desertion without cause subsisted throughout the statutory period and the appellant had persisted in the intention to desert throughout the whole of the two years' period. In this context, it is also significant to mention that the divorce petition was filed on 13th November, 1987 and on 18th November, 1987, the parties had reconciled their differences by making the following statements before the Chief Administrative Officer, Ministry of defense, New Delhi.

Statement of the respondent

``I hereby agree to live with my wife Shrimati Santosh Sharma at C1/17-B, Lawrence Road, Delhi. I will not allow the matter regarding our married dispute to come up again. I will keep my wife in comforts and provide the necessary care and affection to make our marriage a success.

Sd/shiv Praksah

18th November, 1987."

Statement of the appellant

``In view what has been stated by my husband Shri Shiv Prakash Sahrma, above, I withdrew my allegations made by me to the various authorities in the Ministry of defense as well as to P.M. I shall live no stone unturned in my endeavor t discharge with the duties and obligations expected of a wife. I shall also not leave for my parents home without the due concurrence of my husband.

Sd/-Santosh Sharma

18th November, 1987."

11 Unfortunately, both the courts below have totally ignored the implication of the said statements. The aforesaid statement of the appellant clearly shows that she was really contrite and anxious to resume married life. In view of the aforesaid statements of the appellant, can the respondent honestly say that his desertion, if any, continued throughout the statutory period without his consent. The appellant had made an unconditional statement that she was willing to go and stay with the respondent. In this view of the matter, it cannot be said that the appellant had been staying away from the respondent with an intention to bring the matrimonial relationship to an end. As indicated earlier, the law insists that the desertion by the offending spouse should be for a continuous period of not less than two years immediately preceding the presentation of the petition. Such ground had obviously not arisen on 13th November, 1987 when the petition fort divorce was filed as the alleged desertion stood terminated on 9th November,m 1986 when the appellant resumed her matrimonial home with all the implications of marital life. That being so, the date of the appellants departure from her matrimonial home is 4th December, 1986 and in view of the provision (ib) of Section 13(1) of the Cat, the petition for divorce was not maintainable as it was filed before completion of the statutory period of two years. Thus both the Courts below have committed a grave error in holding that the respondent was entitled to a decree of divorce on the ground of desertion.

12. For the foregoing reasons, the appeal is allowed and the judgment dated 18th March, 1991 passed by the Additional District Judge, Delhi granting a decree for divorce to the respondent on the ground of desertion and the judgment dated 30th April, 1991 of the learned Single Judge in FAO No.76/91 affirming the judgment and decree of the Trial Court are set aside. The respondent's suit for divorce is dismissed. No order as to costs.