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CASE NO.:

Appeal (civil) 6534-6536 of 1995

PETITIONER:

ADHYATMA BHATTAR ALWAR

Vs.

RESPONDENT:

ADHYATMA BHATTAR SRI DEVI

DATE OF JUDGMENT: 06/11/2001

BENCH:

D.P. Mohapatra & Doraiswamy Raju

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.

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 respondents 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,

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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.

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-laws 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

fathers behavior 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.

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 under Section 13(1)(ib) of the Act.

Accordingly, the petition was allowed by granting a decree

for judicial separation instead of a decree for divorce.

Both the parties challenged the judgment of the

trial Court by filing appeals. The husband filed the appeal -

AAO No.365/91, while the appeal filed by the wife was

registered as AAO 718/91. As noted above, the High Court,

in the judgment rendered on 14th July, 1993, set aside the

judgment and decree of the trial Court, allowed the appeal

filed by the wife and dismissed the appeal filed by the

husband. The High Court held that the wife did not have at

any time the necessary animus to put an end to the

matrimonial relationship and never intended to desert her

husband. Hence, these appeals by the husband.

Section 13(1)(ib) of the Act reads as follows:

Divorce.- (1) Any marriage solemnized,

whether before or after the

commencement of this Act, may, on a

petition presented by either the husband

or the wife, be dissolved by a decree of

divorce on the ground that the other

party

xxx xxx xxx

(ib) has deserted the petitioner for a

continuous period of not less than two

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years immediately preceding the

presentation of the petition; or

xxx xxx xxx

Explanation In this sub-section the

expression desertion means the

desertion of the petitioner by the other

party to the marriage without reasonable

cause and without the consent or

against the wish of such party and

includes the willful neglect of the

petitioner by the other party to the

marriage, and its grammatical variations

and cognate expressions shall be

construed accordingly.

Xxx xxx xxx

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 deserndi;

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.

This Court in the case of Bipin Chander

Jaisinghbhai Shah vs. Prabhawati, 1956 SCR 838,

observed :

........ Thus the quality of permanence is one

of the essential elements which differentiates

desertion from willful separation. If a spouse

abandons the other spouse in a state of

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temporary passion, for example, anger or

disgust, without intending permanently to

cease cohabitation, it will not amount to

desertion. 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 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 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

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

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for divorce have been commenced, desertion

comes to an end and if the deserted spouse

unreasonably refuses to 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.......

xxx xxxx xxx

But it is not necessary that at the time the wife

left her husbands home she should have at

the same time the animus deserendi. Let us

therefore examine the question whether the

defendant in this case, even if she had no

such intention at the time she left Bombay,

subsequently decided to put an end to the

matrimonial tie. This is in consonance with

the latest pronouncement of the Judicial

Committee of the Privy Council in the case of

1955 A.C.402 at p.417 (F) in an appeal from

the decision of the High Court of Australia, to

the following effect :-

Both in England and in Australia, to

establish desertion two things must be proved

: first, certain outward and visible conduct

the factum of desertion; secondly, the

animus deserendi the intention underlying

this conduct to bring the matrimonial union to

an end.

In ordinary desertion the factum is

simple; it is the act of the absconding party in

leaving the matrimonial home. The contest in

such a case will be almost entirely as to the

animus. Was the intention of the party

leaving the home to break it up for good, or

something short of, or different from that?

(Emphasis supplied)

In the case of Lachman Utamchand Kirpalani vs.

Meena alias Mota, 1964 (4) SCR 331, a Constitution Bench

of this Court, considering the case of judicial separation on

the ground of desertion without just cause held on facts that

the respondent (wife) left the appellants matrimonial home

on February 26, 1954 with the intention of permanently,

breaking it up, and that such desertion continued during the

requisite period of two years and that the appellants letter of

1st April 1955, did not constitute an interruption of the

respondents desertion by its being a just cause for her to

remain away from the matrimonial home; and that, in

consequence, the appellant was entitled to a decree for

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judicial separation under Section 10(1)(a) of the Hindu

Marriage Act, 1955. It was observed that An offer to return

to the matrimonial home after sometime, though desertion

had started, if genuine and sincere and represented his or

her true feelings and intention, would bring to an end the

desertion because thereafter the animus deserendi would be

lacking, though the factum of separation might continue; but

on the other hand, if the offer was not sincere and there was

in reality no intention to return, the mere fact that letters were

written expressing such an intention would not interrupt the

desertion from continuing. In this connection, reference

was also made to the decision in the case of Bipin Chander

Jaisinghbhai Shah vs. Prabhawati (supra).

This Court in the case of Smt.Rohini Kumari vs.

Narendra Singh, 1972(1) SCC 1, while considering the case

of judicial separation on the ground of desertion under

Section 10(1)(a) of the Act read with the Explanation, held :

........The two elements present on the side of

the deserted spouse should be absence of

consent and absence of conduct reasonably

causing the deserting spouse to form his or

her intention to bring cohabitation to an end.

The requirement that the deserting spouse

must intend to bring cohabitation to an end

must be understood to be subject to the

qualification that if without just cause or

excuse a man persists in doing things which

he knows his wife probably will not tolerate

and which no ordinary woman would tolerate

and then she leaves, he has deserted her

whatever his desire or intention may have

been. The doctrine of constructive desertion

is discussed at page 229. It is stated that

desertion is not to be tested by merely

ascertaining which party left the matrimonial

home first. If one spouse is forced by the

conduct of the other to leave home it may be

that the spouse responsible for the driving out

is guilty of desertion. There is no substantial

difference between the case of a man who

intends to cease cohabitation and leaves the

wife and the case of a man who with the

same intention compels his wife by his

conduct to leave him.

In Lachman Utamchand Kirpalani v. Meena

alias Mota, this Court had occasion to

consider the true meaning and ambit of

Section 10(1)(a) of the Act read with the

Explanation. Reference was made in the

majority judgment to the earlier decision in

Bipin Chander Jaisinghbhai Shah v.

Prabhawati, in which all the English decisions

as also the statement contained in

authoritative text books were considered.

After referring to the two essential conditions,

namely, the factum of physical separation and

the animus deserendi which meant the

intention to bring the cohabitation permanently

to an end as also the two elements so far as

the deserted spouse was concerned i.e. (1)

the absence of consent and (2) absence of

conduct giving reasonable cause to the

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spouse leaving the matrimonial home to form

the intention aforesaid, it was observed while

examining how desertion might come to an

end :

In the first place, there must be conduct on

the part of the deserted spouse which affords

just and reasonable cause for the deserting

spouse not to seek reconciliation and which

absolves her from her continuing obligation to

return to the matrimonial home. In this one

has to have regard to the conduct of the

deserted spouse. But there is one other

matter which is also of equal importance, that

is, that the conduct of the deserted spouse

should have had such an impact on the mind

of the deserting spouse that in fact it causes

her to continue to live apart and thus continue

the desertion. But where, however, on the

facts it is clear that the conduct of the

deserted spouse has had no such effect on

the mind of the deserting spouse there is no

rule of law that desertion terminates by reason

of the conduct of the deserted spouse.

(Emphasis supplied)

This Court in the case of Sanat Kumar Agarwal

vs. Nandini Agarwal, (1990) 1 SCC 475, considering a case

under Section 13(1)(ib) of the Act, held that it is well settled

that the question of desertion is a matter of inference to be

drawn from the facts and circumstances of each case and

those facts have to be viewed as to the purpose which is

revealed by those facts or by conduct and expression of

intention, both anterior and subsequent to the actual act of

separation.

In a recent case in Chetan Dass vs. Kamla Devi,

(2001) 4 SCC 250, this Court considered the question

whether the offer made by the husband in this Court to keep

his wife, was held to be not sincere and did not deserve to

be seriously considered. In that connection, this Court held :

During the course of the arguments, learned

counsel for the appellant, so as to show the

allegations made against the appellant about

having illegitimate relationship with Sosamma

Thomas(sic.), submitted that the appellant is

still prepared to keep the respondent Kamla

Devi with him. According to him, the appellant

never refused to live with her. In reply,

learned counsel for the respondent submitted

that the respondent was also prepared to live

with the appellant provided that he

discontinued his relationship with Sosamma

Thomas. The hollowness of the submission

that the appellant was still prepared to keep

the respondent with him is quite apparent. It

is on record that it was on the some (sic.

Same) undertaking that the respondent was

taken to Ganganagar by the appellant to live

with him but there she was subjected to

humiliating treatment meted out to her by the

appellant himself having his food only in the

room of Sosamma Thomas and staying there

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during the night leaving his wife and sister

alone on the ground floor. With this kind of

attitude, the offer as made on behalf of the

appellant is too shallow to deserve any

serious thought. At the same time, the

condition on which the respondent is prepared

to live with him seems to be quite justified,

that is to say, she is still prepared to live with

him provided he behaves and snaps his

relationship with the other woman. It is

apparent that it is the own conduct of the

appellant which led the respondent to live

separate from the appellant. None else, but

the appellant alone, is to be blamed for such

an unhappy and unfortunate situation. The

findings of facts, as recorded by the two

courts below, do not deserve to be disturbed

in any manner nor have they been seriously

assailed before us.

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 13 A 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 husbands 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

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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 objection 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.

..J.

(D.P.Mohapatra)

...J.

(Doraiswamy Raju)

Dated the 6th November, 2001