1956

October 19.

838 SUPREME COURT REPORTS (1956)

BIPIN CHANDER JAISINGHBHAI SHAH

v.

PRABHAWATI.

(JAGANNADHADAS, VENKATARAMA AYYAR and

B. P. SINHA, JJ.]

Husband and Wife-Divorce-Desertion-Ingredients of Deser­

tion-Intention-Animus Deserendi-Statutory period of separaticn

-Burden of proof-Bombay Hind" Divorce Act, 1947 (Bom. XXII

of 1947 ), s. 3(1)( d).

The parties were married in 1942 and there was a child of the

marriage. In 1947 the appellant left for England on business and

on his return to India discovered that this wife (respondent) had

been having amorous correspondence with one M, and taxed her with

having developed intimacy with him. She was unable to give any

answer and went to her father's place on May 24, 1947, on the pre·

text of the marriage of her cousin which was to te.ke place in Jnne.

On July 15, 1947, the appellant sent a notice to the respondent

through bis solicitor in which after mentioning the fact

that she had

left against his wishes stated

that he did not desire to keep her

any

longer under his care and protection, and desired her to send the

minor son to him. On July 4, 1951, the appellant instituted the suit

for divorce under s. 3(1)(d) of the Bombay Hindu Divorce Act, 1947,

on the ground that the respondent had been in desertion ever since

Ma.y 24, 1947, without reasonable ca.use and without his consent

and against his will for a period of over four years. The respondent's

case that it was the appellant who by his treatment of her after bis

return from England had made her Ji£e unbearable and compelled

her to lea.ve her marital home against her wishes, wa.s not proved

but there was evidence that after the solicitor's notice dated July 15,

1947, was received by the respondent, attempts were made by her

father and bis relations to bring about reconciliation between the

parties but they failed awing to the attitude of the appellant. The

question was whether

the respondent had been in desertion entitling

the

appellant to have a decree for divorce.

Held that, on. the facts, though the initial fault la.y ·with the

respondent. her leaving her marital home was not actuated by any

animus to desert her husband

but.

as the result of her sense of guilt,

and as subsequently she was willing to come back but could not do

so owing t.o the attitude of the appellant, there was no proof that

she deserted him, much Jess that she had harboured that anim"s for

the

statutory period, and the appellant's case must

fail.

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 to bring cohabitation permanently to an end

-

'.

•

S.C.R. SUPREME COURT REPORTS 839

(animu& deserendi); and as regards the qeserted spouse the elements 1956

are (i) the absence of consent and (ii) absence of conduct giving

reasonable cause to the

spous;e leaving the matrimonial home to

Bij>in Chander

form the necessary intention aforesaid. Jaisinghbhai Shah

Desertion is a matter of inference to be drawn from the facts

and circumstances of each case a.nd 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 suit for divorce on the ground of desertion the burden is on

the plaintiff to prove that the deserting spouse has been in desertion

throughout the statutory period

of four yea.rs.

Thomas v. Thomas ([1924]

l'. 194), Bowron v. Bowron ([19115]

P. 187), Pratt v. Pratt ([1939] A.O. 417) and Lang v. Lang ([1955]

A.O. 402), referred to.

Quaere, whether the statutory period of four years specified in

s. 3(1)(d) should immediately precede the institution of the suit for

divorce.

CIVIL APPELLATE JURISDICTION: Civil Appeal

No.

247 of 1953.

Appeal by special leave from the judgment and

decree dated August 22, 1952 of the Bombay High Court in Appeal No. 66 of 1952 arising out of the

decree dated March 7, 19t>2 of Bombay High Court

in its Ordinary Original Civil Jurisdiction in Suit

No. 1177 of 1951.

M. 0. Setalvad, Attorney-General for India, Pur­

shottam Tricumdas, T. God,iwala, J. B. Dadachanji,

Rameshwar Nath

and

S. N. Andley, for the appellant.

0. K. Daphtary, Solicitor-General of India and

Sardar Bahadur, for the reE1pondent.

1956. October 19. The Judgment of the Court

was delivered by

SINHA J.-This is an appeal by special leave against

the judgment and decree of the High Court of Judica­

ture at Bombay dated August 22, 1952, reversing those

of a single Judge of that Court on the Original Side,

dated March 7-, 1952, by which he had granted a decree

for dissolution

of marriage between the appellant and

the respondent.

v.

P.-abhawati

840 SUPREME COURT REPORTS [1956]

1956 The facts and circumstances of this case may be

Bp· Ch d .stated as follows: The appellant, who was the plain­

Jai:i~;hbh:;• s:ah tiff, and the respondent were married at Pa tan on

v. April 20, 1942, according to Hindu rites of the Jain

Prabhawati Community. The families of both the parties belong

to Pa tan, which is a town in Gujarat, about a night's

rail journey from Bombay. They lived in Bombay

Sinha}.

in a two-room flat which was in occupation of the >"

appellant's family consisting of his parents and,his

two sisters, who occupied the larger room called the

hall, and the plaintiff and the defendant who occupied

the smaller room called the kitchen. The appellant's

mother who is a patient of asthma lived mostly at

Pa tan. There fa an issue of the marriage, a son named

Kirit, born on September 10, 1945. The defendant's

parents lived mostly at J algaon in the East Khandesh

district in Bombay. The parties appear to have lived

happily in Bombay until a third party named Ma­

hendra, a friend of the family came upon the scene

and began to live with the family in their Bombay

flat some time in 1946, after his discharge from the

army. On January 8, 1947, the appellant left for

England on business. It was the plaintiff's case that

during his absence from Bombay the defendant. be­

came intimate with the said Mahendra and when she

went

to Patan after the plaintiff's departure for

England she carried on

"amorous correspondence"

with Mahendra who continued to stay with the plain­

tiff's family in Bombay. One of the letters written

by the defendant to Mahendra while staying at the

plaintiff's flat in Bombay, is Ex. E as officially trans­

lated in English, the original being in Gujera ti except

a few words written in fatilty English. This letter

is dated April 1, 1947, written from the plaintiff's house

at Patan, where the defendant had been staying with

her mother-in-law. This letter had been annexed to

the plaint with the official translation. It was denied

by the defendant in her written statement. But at

the trial her counsel admitted it to have been written

by her to Mahendra. As this letter started all the

trouble between the parties to this litigation, it will

have to be set out in extenso hereinafter. Continuing

S.C.R. SUPREME COURT REPORTS 841

the plaintiff's narrative of the events as alleged in

1

9

5

6

the plaint and in his evidence, the plaintiff returned

Bp· Ch d

• t ui an er

to Bombay from abroad on May 20, 1947. To receive Jaisinghbhai Shah

him back from his foreign journey the whole family y.

including the defendant was there in Bombay. Ac- Prablrawati

cording to the plaintiff, he found that on the fir,st

night after his return his bed had been .made in the

hall occupied by his father and that night he slept

away from his wife. As this incid1lnt is said to have

some significance in the narrative of events leading

up to the separation between the husband and the

wife and about the reason for which the parties differ,

it will have to be examined in detail later. Next

morning, that is to say, on May 21, 1947, the plain-

tiff's

father handed over the letter aforesaid to the

plaintiff, who recognised it as being in the familia1

handwriting of bis wife. He decided to tackle his wife

with reference to

the letter. He handed it to a photo-

grapher to have photo copies made of the same. That

very day in the evening he asked his wife as to why

she

had addressed the letter to Mahendra.

She at first

denied having

written any

letter and asked to see the

letter upon which the plaintiff informed her that it

was with the photographer with a view to photo

copies being made. After receiving the letter and the

photo copies from the photographer on May 23, the

plaintiff showed the defendant the photo copy of the

letter in controversy between them at that stage and

then the defendant is alleged to have admitted having

written the letter to Mahendra and to have further

told the plaintiff that Mahendra was a better man

than him and that Mahendra loved her and she loved

him.

The next important event in the narrative is

what happened on May 24, 1947.

On the morning of

that day, while the plaintiff was getting ready to go

to his business office his wife is alleged to have told

him

that she had packed her luggage and was ready

to go to Jalgaon on the ostensible ground that there

was a

marriage in her father's family. The plaintiff

told her that if she had made up her mind to go, he

would send

the car to take her to the station and

offered to pay her Rs.

100 for her expenses. But she

Sinha J.

842 SUPREME COURT REPORTS [1956]

1956

ref1;1se~ ~he offer. She left Bombay apparently in the

a;p;n c1ia .. der plamtiff s absence for J algaon by the afternoon train.

Jaisinghbhai Shah When the plaintiff came back home from his office he

v. "discovered that she had taken away everything ~ith

Prabhawati her and had left nothing behind". It may be added

here

that the plaintiff's mother had left for Patan

with his son some days previously. Plaintiff's case

further is that the .defendant never came back to

Bombay to live with

l;lim, nor did sbe write any letters

from Jalgaon, where she stayed most of the time. It

appears further that the plaintiff took a very hasty,

if not also a foolish, step of having a letter addressed

to the defendant by his solicitor on July 15, 1947,

charging her with intimacy .between herself o.nd

Mahendra and asking her to send back the little boy.

The parties violently differ on the intent and effect of

this letter which will have to be set out in extenso at

the appropriate place. No answer to this letter was

received by

the plaintiff. In November, 1947, the

plaintiff's mother came from Patan to Bombay and

informed the plaintiff that the defendant might be

expected in Bombay a few days later. Thereupon

the

plaintiff sent a telegram to his father-in-law at Pa tan.

The telegram is worded as

follows:-

Sinha}.

"Must not send Prabha. Letter posted.

Wishing happy new year".

The telegram stated that a letter had been posted.

The defendant denied that any such letter had been

received by

her or by her father. Hence the original,

if any, is not on the record. But the plaintiff pro­

duced

what he alleged to be a carbon copy of that

letter which purports to have been written on Novem­

ber

13, 1947, the date on which the telegram was

despatched. An English

translation of that letter is

Ex.

C and is to the following effect:-

" Bombay, 13-11-47

To

Rajmanya Rajeshri Seth Popatlal & others.

There is no letter from you recently. You must

have received the telegram sent by me today.

Further, this is to inform you that I have re­

ceived

information from my Marni (mother) that

S;C.R. SUPREME COURT REPORTS 843

Prabha is going to come to Bombay in 3 or 4 days. I 1956

am surprised to hear this news. Ever since she has

J 1 th h b

. l l Bipin Chand•r

gone to a ga~n, ere as een not a smg e etter Jaisinghbhai Shah

from her to this day. Not only that, but, although v.

you know everything, neither you nor any onf') on Prabhawati

your behalf has come to see me in this connection.

What has made Prabha thus inclined to come all of Sinha J.

a sudden!

. After her behaviour while going to Jalgaon for

the marriage, (and after), berletter to Mahendra and

her words-'He is better than you-Has feeling for

me

and I love him' and all this, I was afraid that she

would

not set up a house with me. Hence when my

mother gave me the news of lier return, I was

sur­

prised .

. I have not the slightest objection to the return

of Prabha, but if she gives a.uch shameless replies to

me and shows such improper behaviour, I shall not be

able

to tolerate the same. If she now really realises

her mistake

and if she is really repenti.og and wants

sincerely

to come, please make her write. a reply to

this letter.

On getting a letter from her, I shall per­

sonally come to Patan to fetch her. Kirit is young,

For his sake also, it is necessary to persuade Prabha.

Further, I have to state that I have so far kept

peace. I have made efforts to call back Prabha.

Please· understand this to her my final effort. If even

now

Prabha does not give up her obstinacy, I am not

responsible and (then) do not blame me.

Well,

that is all for the present. Kirit must be

hale

and hearty. My new year's greetings to you

all:

Please do assign to me such work as I can manage.

Written by Bipinchandra".

The plaintiff

stated that he received no answer either

to the telegram or to the letter. Two days later, on

November 15,

the plaintiff's father addressed a letter

to the defendant's father, which is Ex. D. This letter

makes reference to the defendant's mother having

talked to the plaintiff's mother about sending the

de­

fendant to Bombay and to the fact that the plaintiff

had sent a telegram on November 13, and ends with

the expression of opinion by the plaintiff's father

1956

Bipin, Chander

J aisinghbhai Shala

v.

Prabhawati

Sinha J.

844 SUPREME COURT REPORTS [1956]

that it was "absolutely necessary" that the plaintiff's

consent should be obtained before sending the defen­

dant to Bombay. This letter also remained un­

answered. According to the plaintiff, nothing hap­

pened until May, 1948, when he went to Pa tan and

there met the defendant and told her "that if she re­

pented for her relations with Mahendra in the interests

of the child as well as our own interests she could

come

back and live with

me". To that the defendant

is said to have replied that in November, 1947, as a re­

sult of pressure from her father and the community,

she had been thinking of coming to livewith the plain­

tiff, but that she had then decided not to do so. The

defendant has given quite a different version of this

interview. The second interview between the plaintiff

and the defendant again took place at Pa tan some time

later in 1948 when the plaintiff went there to see her

on coming·to know that she had been suffering from

typhoid. At that time also she evinced no desire to

come back to the plaintiff. The third and the last

interview between the plaintiff and the defendant

took place at Jalgaon in April-1\iay, 1949. At that

interview also the defendant turned down the plain­

tiff's request that at least in the interests of the child

she should come back

to him. According to the

plain­

tiff, since May 24, 1947, when the defendant left his

home

in Bombay of her own accord, she had not come

back to her marital home. The suit was commenced

by

the plaintiff by filing the plaint dated July 4, 1951,

substantially on the ground that the defendant had

been in desertion ever since May 24, 1947, without

reasonable cause and without his consent and against

his will for a period of over four years. He therefore

prayed for a decree for a dissolution of bis marriage

with the defendant and for the custody of the minor

child.

The suit was contested by the defendant by a

writ­

ten statement filed on February 4, 1952, substantially

on the ground that it was the plaintiff who by his

treatment of her _after his return from England had

made her life unbearable and compelled her to leave

her marital home against her wishes on or about May

•

<

,.

S.C.R. SUPREME COURT REPORTS 845

24,, 1947. She denied any intimacy between herself 19

5

6

and Mahendra or that she was confronted by the 8

,,,. Ch J

. E E tyin an er

plaintiff with a photos tat copy of the letter, x. , Jais,.ghbhai Shah

or that she had confessed any such intimacy to v.

the plaintiff. She admitted having received the Prabltawati

Attorney's letter, Ex. A, and also that she did not

reply to that letter. She adduced her father's advice

ae1 the reason for not sending any answer to that

letter. She added that her paternal uncle Bhogilal

(since deceased) and his son Babubhai saw the plain-

tiff in Bombay at the instance of the defendant and

her father and that the plaintiff turned down their

request for taking her back. She also made reference

to the negotiations between the defendant's mother

and the plaintiff's mother to take the defendant back

to Bombay and that the defendant could not go to

Bombay as a result of the telegram of November 13,

1947,

and the plaintiff's father's letter of November

15, 1947, aforesaid.

She also stated that the defen-

dant and her son, Kfrit, both lived with the plaintiff's

family at Patan for over four months and off and on

on several occasions. The defendant's definite case

fa that she had always been ready and willing to go

back

to the plaintiff and that it was the plaintiff who

all along had been wilfully refusing to keep her and

to cohabit with her.

On those allegations she resisted

the plaintiff's claim for a decree for a dissolution of

the marriage.

On those pleadings a single issue was joined bet­

ween the parties, namely,-

"Whether the def~ndant deserted the plaintiff

for a

continuous period of over four years prior to t.he filing of the suit".

At the trial held by Tendolkar, J. of the Bombay

High Court on the Original Side, the plaintiff examined

only himself in support of his case. The defendant

examined herself, her father, Popatlal, and her cousin,

Bhogilal,

in support of her case that she had been all i:tlong ready and willing to go back to her marital

home and that in spite of repeated efforts on her part

t.hroµgh her relations the plaintiff had been persist­

ently refusing to take her back.

110

Sin/la J.

846 SUPREME COURT REPORTS (1956]

1956 The learned trial Judge answered the only issue in

B

,A. Ch.

4

the case in the affirmative and granted a decree for

,,,,,. an er d' ' ,. f th 1 ' 'ff b d d

Jaisinghbhai Shah ivorce m 1avour o e p amt1 , ut ma e no or er

v. as to the costs of the suit. He held that the letter,

Prabhawali Ex, E "reads like a love letter written by a girl to

her paramour. The reference to both of them hav­

ing been anxious about something and there being

now no need

to be anxious any more can only be to a

Sinha}.

possible fear that she might miss her monthly periods

and her having got her monthly period thereafter,

because,

if it were not so and the reference was to

anything innocent, there was nothing that she should

have repented

later on in her mind as she

says· she

did,

nor should there have been occasion for saying

'after all love is such an

affair'." With reference to

that letter he further held that it was capable of

the interpretation that she had misbehaved with

Mahendra

and that she was conscious of. her guilt.

With reference to the incident of

May 24, the learned

Judge observed that having regard to the demeanour

of the plaintiff and of the defendant in the witness

box, he was inclined to prefer

the husband's

testi­

mony to that of the wife in all matters in which there

was a conflict.

He held therefore that there was

desertion with

the necessary animus deserendi and

that the defendant had failed to prove that she

entertained a

bona fide intention to come back to the

marital home, that is to say, there was no animus

revertendi. With reference to the contention that the

solicitor's letter of July 15, 1947, had terminated the

desertion, if any, he held that it was not well founded

inasmuch as

the defendant had at no time a genuine

desire

to return to her husband. He made no

ref­

erence to the prayer in the plaint that the custody of

the child should be given to the father, perhaps be­

cause that prayer was not pressed.

The defendant preferred an appeal under the

Letters Patent which was heard by a Division Bench

consisting

of

Chagla C.J. and Bhagwati J. The Ap­

pellate Bench allowed the appeal, set aside the deci­

sion of the trial Judge and dismissed the suit with

oosts. It held that the defendant was not guilty of

-

I

S.C.R. . SUPREME COURT REPORTS · 847

desertion, that the letter of July 15, 1947, clearly 1956

established that it was the plaintiff who had deserted

8

.,,. Ch a

r d Al • } h A }) C r,.rn an et•

the de1en ant. ternahve y, t e ppe ate ourt Jaisinghbhai Shah

held that even assuming that the defendant was in v.

desertion as a result of what had happened on May Prabhawati

24, and subsequently, the letter aforesaid had the

effect of putting an end to that desertion. In its SinhaJ.

judgment the letter, Ex. E, did not justify the plain-

tiff having

any reasonable suspicions about his wife's

guilt

sind that the oral evidence of the defendant and

her relations proved the wife's anxiety to return back

to her husband and of the obduracy of the husband

in refusing to take the wife back. The plaintiff made

an application to the High Court for leave to appeal

to this Court. The leave asked for was refused by

another Division Bench consisting of the Chief Just.ice

and Dixit J. Thereafter the plaintiff moved this

Court and obtained special leave to appeal from the

judgment of the Appellate Bench of the High Court ..

In this appeal the learned Attorney-General ap·

pearing on behalf of the appellant and the learned

Solicitor-General appearing on behalf

of the

respon­

dent have placed all relevant considerations of fact

and law before us, and we are beholden to them for

the great assistanqe they rendered to us in deciding

this diffic~lt case. The difficulty is enhanced by

the fact· that the two courts below have taken

diametrically opposite views of the facts of the case

which depend mostly upon oral testimony

of the

plaintiff-husband and the defendant-wife and not

corroborated in many respects on either side. It is

a.

case of the husband's testimony alone on his side and

the wife's testimony aided by that of her father and

her cousin. As already indicated, the learned trial

Judge was strongly in favour of preferring the hus­

band's testimony to that of the wife whenever there

was any conflict. But he made no reference to the

testimony of the defendant's father and cousin which,

if believed, would give an entirely different colour to

the case.

Before

we deal with the points in controversy, it is

convenient here

to make certain general observations

848 SUPREME COURT REPORTS [1956]

1956 on the history of the law on the subject and the well

ap-Ch

1

established general prinniples on which such cases

Ja;:;:;hbh;;"s~;ah are determined. The suit giving rise to this appeal

v. is based on section 3(l)(d) of the Bombay Hindu

Prabhawati Divorce Act, XXII of 1947, (which hereinafter will

Sinha J.

be referred to as "The Act") which came into force

on May 12, 1947,

the date the Governor's assent was

published in

the Bombay Government Gazette. This

Act, so far as the Bombay Province, as it then was,

was concerned, was the first

step in revolutionizing

the law of matrimonial relationship, and, as the

Preamble shows, was meant

"to provide for a right

of divorce among all communities of Hindus in cer­

tain circumstances". Before the enactment, dissolu­

tion of a Hindu marriage particularly amongst what

were called the regenerate classes was unknown to

general

Hindu law and was wholly inconsistent with

the basic conception of a Hindu marriage as a sacra­

ment, that is to say, a holy alliance for the

perform·

ance of religious duties. According to the Shastras,

marriage amongst the Hindus was the last of the ten

sacraments enjoined by the Hindu religion for purifica·

cation. Hence according to strict Hindu law as given

by the Samhitas and as developed by the cornmenta·

tors, a Hindu marriage could not be dissolved on

any ground whatsoever, even on account of degrada­

tion in the hierarchy of castes or apostacy. But

custom, particularly amongst the tribal and what

used to be called the lower castes recognised divorce

on rather easy terms. Such customs of divorce on easy

terms have been in some instances held by the courts

to be against public policy. The Act in section 3 sets

out the grounds of divorce. It is noticeable that the

Act does not recognise adultery simpliciter as one of

the grounds of divorce, though cl. (f) renders the

fact that a husband "has any other woman as a con­

cubine" and that a wife "is a concubine of any other

man or leads the life of a prostitute" a. ground of

divorce. In the present case we are immediately con­

cerned

with the provisions of s. 3(l)(d), which are

in these terms:- "3. (1) A husband or wife may sue for divorce on

--

S.C.R. SUPREME COURT REPORTS 849

any of the following grounds, namely:-

1956

.................................................... Bp' C

( d) that the defendant has deserted the plaintiff Ja;;,:;hb~·;;·~~;~h

for a continuous period of four years". v.

"Desertion" has been defined in section 2(b) in these Prabhtm>ati

terms:-

" 'Desert' means to desert without reasonable

cause

and without the consent or against the will of

the

spouse".

It will be seen that the definition is tautological 11,nd

not very helpful and leads us to the Common Law of

England where in spite of repeated legislation on the

subject of matrimonial law, no attempt has been made

to define "desertion". Hence a large body of case­

law has developed round the legal significance of

"desertion". "Marriage" under the Act means "a

marriage between Hindus whether contracted before

or after the coming into operation of this Act". "Hus­

band" means a Hindu husband and "wife" means a

Hindu wife.

In England until 1858 the only remedy for

desertion was a

suit for restitution of conjugal rights.

But by the Matrimonial

Causes Act of 1857, desertion

without cause for two years and upw1trds was made a

ground for a suit for judicial separation. It was not

till 1937 that by the Matrimonial Causes Act, 1937,

desertion without cause for a period of three years

immediately preceding the institution of proceedings

was

made a ground for divorce. The law has now

been consolidated in

the Matrimonial

Causes Act,

1950 (14 Geo. VI, c. 25). It would thus appear that

desertion as affording a cause of action for a suit for

dissolution

of

marriage is a recent growth even in

England.

What is desertion? "Rayden on Divorce" which is

a

standard work

on the subject at p. 128 (6th Edn.)

has summarised the case-law on the subject in these

terms:-

"Desertion is the separation of one spouse from

the other, with an intention on the part of the desert­

ing spouse of bringing cohabitation permanently to

an end without. reasonable cause and without the

Sinha J.

850 SUPREME COURT REPORTS [1956]

1956 consent of the other spouse; but the physical act of

departure by one spouse does not necessarily make

BiPin Chander th t th d t · t ,,

Jaising11bhai Shah a . spouse . ~ eser mg par y. . .

v. The legal pos1t10n has been admirably summarised in

Prabhau•aU paras. 453 and 454 at pp. 241 to 243 of Halsbury's

Laws of England (3rd Edn.) Vol. 12, in the following

Sinha]. words:-

"ln its essence desertion means the intentional

permanent forsaking and abandonment of one spouse

by the other without that other's consent, and with­

out reasonable cause. It is a total repudiation of the

obligations of marriage. In view of the large variety

of circumstances and of modes of life involved, the

Court has discouraged attempts at defining desertion,

there being no general principle applicable to all

cases.

Desertion is

not the withdrawal

from a place but

from a state of things, for what the law seeks to en­

force 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'. There

can be desertion without previous cohabitation by

the parties, or without the marriage having been con­

summated.

The person who actually withdraws from cohabi­

ta·l;ion is not necessarily tho deserting party. The

fact that a husband makes an allowance to a wife

whom.he has

abandoned is no answer to a charge of

desertion.

The offence

of desertion is a course of conduct

which exists independently of its duration, but as a

ground for divorce it must exist for a period of at

least

three years immediately preceding the presenta­

tion of the petition or, where the offence appears as

a cross-charge, of the answer. Desertion as a ground

of divorce differs from the statutory grounds of

adultery and. cruelty in that the offence founding the

cause of action of desertion is not complete, but is

inchoate, until the suit is constituted. Desertion is

a continuing offence".

Thus the quality of permanence is one of the essen­

tial elements which differentiates desertion from

-

S.C.R. SUPREME COURT REPORTS 851

wilful separation. If a spouse abandon the other 1956

spouse in a state of temporary passion, for example,

8

.,,. Ch d .

l

• • l • d' tl t i,-tt! a1t Cl

anger or c isgust, wit 10u t in ten mg perm an en y o Jaisinghbhai Shah

cease cohabitation, it will not amount to desertion. , ..

For the offence of desertion, so far as the deserting Prabliawati

spouse is concerned, two essential conditions must be

there, namely, (I) the factum of separation, and (2) SillhaJ.

the intention to bring cohabitation permanently to

an end (animus deserendi). Similarly two elements

are essential so far as the deserted ispouse is con-

cerned: (I)

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 burde1i

of proving

those elements in the two spouses respec-

tively. 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 proceed-

ings 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 infer-

ence

may be drawn from certain facts which may not

in another case be capable of leading to the same in-

ference;

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 attri-

butable to an animus deserendi. The offence of de-

sertion 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

852 SUPREME COURT REPORTS [1956]

1956 and the animus deserendi coincide in point of time; for

BiJ>i>• Chana-. exa~ple, when ~he sep~ratin~ spouse abandons the

Jaisinghbhai Shah manta! home with the mtent1on, express or implied,

v. of bringing cohabitation permanently to a close. The

Prabhawati law in England has prescribed a three year period and

the Bombay Act prescribes a period of four years as a

SinhaJ. 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 dinirce have been

commenced, desertion comes to an end and if the de­

sert'ed 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

any 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. In this

connec­

tion the following observations of Lord Goddard,

C.J. in the case of Lawson v. Lawson(') may be re­

ferred to:-

"These cases are not cases in which corroboration

is required as a matter of law. It is required as a

tt f t

. " ma er o precau 10n... ......... .

With these preliminary observations we now proceed

to examine the evidence led on behalf of the parties

to find out whether desertion has been proved in this

case and, if so, whether there was a bona fide offer by

the wife to return to her matrimonial home with a

view

to discharging marital duties and, if so, whether

(1) [1955] 1 All

1'.R. 841, 342.

-

S.C.R. SUPREME COURT REPORTS 853

there was an unreasonable refusal on the part of the 1956

husband to take ~er back. . . . . Bipin Chandet' ·

In this connect10n the plamtiff m the witness box Jaisinghbhai Shah

deposed to the incident of the night of May 20, 1947. v.

He stated that at night he found that his bed had Prabhawati

been made in the hall in whieh his father used to

sleep, and on being questioned by him, the defendant

told him that it was so done ,with a view to giving

him the opportunity after a lbng absence in England

to talk to his father. The plaintiff expressed his

wish

to the defendant that they should sleep in the

same room as they used to before his departure for

England, to which the wife replied that as the bed

had already been made,

"it would look indecent if

they were removed". The plain tiff therefore slept in

the hall that night. This incident was relied upon

by the plaintiff with a view to showing that the wife

had already made up her mind to stop cohabitation.

This incident has not been admitted by the defendant

in her cross-examination. On the other hand, she

would make

it out that it was at the instance of the

plaintiff that the bed had been madein the hall occu-

pied by his

father and that it was the plaintiff and

not she who was responsible for their sleeping apart

that night. As the learned trial Judge has preferred

the plaintiff's testimony to that of the defendant on

all matters on which there was simply oath against

oat.h, we would not go behind that finding. This

incident by itself is capable of an innocent explana-

tion and therefore has to be viewed along with the

other incidents deposed to by the plaintiff in order

to prove his case of desertion by the defendant.

There was no reason why the husband should have

thought of sleeping apart from the wife because there

was no suggestion in the record that the husband was

aware till then of the

alleged relationship between

the defendant and Mahendra. But the wife may

have been apprehensive that the plaintiff had known

of her relations with Mahendra. That apprehension

may have induced her to keep out of the plaintiff's

way.

The most

important event which led to the ulti-

111

Sinha J.

S54 SUPREME COURT REPORTS (1956)

1956 mate rupture between the parties took place on May

21, 1947, when in the morning the plaintiff's father

mpin Chander 1 d M h d , I tt f "d . h I . "ff'

J .. gl bh . Sh h p ace a en ra s e er a oresa1 m t e p am tJ s

amn 'v. •• a hands. The letter which has rightly been pointed out

Pmbhawati in the courts below as the root cause of the trouble is

in its relevant parts in these terms:-

Sinha J. "Mahendrababu,

Your letter has been received. I have read

the same and have noted the contents. In the same

way, I hope, you will take the trouble of writing me

a

letter now and then. I am writing this letter with

fear in my mind, because if this reaches anybody's

hands, that cannot be said to be decent. What the

mind feels has got to be constrained in the mind only. On the pretext of lulling (my) son to sleep, I have

been sitting here in this attic, writing this letter to

you. All others are chitchatting below. I am think­

ing now and then that I shall write this and shall

write that. Just now my brain cannot go in any

way. I do not feel like writing on the main point.

The matters on which we were to remain anxious and

you particularly were anxious, well we need not now

ha. I very much repented later on in my mind. But

after all love is such an affair. (Love begets love).

"While yet busy doing services to my mother­

in-law, the clock strikes twelve. At this time, I think

of you and you only, and your portr.ait shoots up be­

fore my eyes. I am reminded of you every time.

You write of coming, but just now there is nothing

like a necessity, why unnecessarily waste money?

And

again nobody gets salvation at my hands and

really nobody will. You know the natures of all.

Many a

time I get tired and keep on being uneasy in

my mind, and in the end I weep and pray God and

say,

0 Lord, kindly take me away soon: I am not

obsessed by any kind of anxiety and so relieve me

from

this mundane existence. I do not know how

many times I must be thinking of you every day .... "

This Jetter is not signed by the defendant .and in

place of the signature the word "namaste" finds

-

-

..

S.C.R. SUPREME COURT REPORTS 855

place. The contents of the letter were put to the 1956

defendant in cross-examination. At thattime it was B·p· Ch d

d d h d fi d

, i in an er

no more a conteste ocliment, t e e en ants coun-Jaisinghbhai Shalt

sel having admitted it during the cross-examination v.

of the plaintiff. She stated that she had feelings for Prabhawati

Mahendra as a brother and not as a lover. When

the mysterious parts of the letter beginning with the

words "The matters on which" and ending with the

words ''such an affair" were put to her, she could not

give any explanation as to what she meant. She denied

the suggestion made on behalf of the plaintiff in these

words:-

"lt is not true that the reference here is to our

having had sexual intercourse and being afraid that

I might remain pregnant".

The sentence "l very much repented later on in my

mind" was also put to her specifically and her answer

was "I do not know what I repented for. I wrote

something foolishly". Pressed further about the mean­

ing of the next sentence after that, her answer was

"l cannot now understand how I came to write such

a letter. I

admit that this reads like a letter written

by a girl to her lover. Besides the fact that my brain

was not working properly I had no explanation to

give as to how I wrote such a

letter". She also ad­

mitted that she took good care to see that the other

members of the family, meaning tlae mother-in-law

and the sisters-in-law, did not see her writing that

letter and that she wanted that the letter should re­

main a secret to them. Being further pressed to ex­

plain the sentence "We need not be anxious now",

her answer was" I did not intend to convey that I

had got my monthly period about which we were

anxious. I

cannot say what the normal natural

meaning of this letter would

be". She had admitted

having received at least one letter from Mahendra.

Though

it would appear from the trend of her

cross­

examination that she received more letters than one,

she

stated that she did not preserve any of his letters. She has further admitted in cross-examination "I

have not signed this letter. It must have remained

to be signed by mistake. I admit that under the

Sinha].

1956

Bi'Pi"n Chander

Jaisinghbhtli Shala

v.

Prabhau'Dti

Sinha J,

856 SUPREME COURT REPORTS [1956]

·letter where the signature should be I have put the

word 'Namaste' only. It is not true that I did not

sign this letter because I was afraid, that if it got

into the bands of any one, it might compromise me

and Mabendra. Mahendra would have known from

my

handwriting that this was my letter. I had

pre­

viously written one Jetter to him. That letter also I

had not signed. I had only said 'Namaste' ".

The tenor of the letter and the defendant's expla­

nation or want of explanation in the witness box of

those portions of the Jetter which very much need

explanation would leave no manner of doubt in any

person who read that letter that there was something

between her and Mabendra which she was interested

to keep a secret from everybody. Even when given

the opportunity to explain, if she could, those por­

tions of the letter, she was not able to put any inno­

cent meaning to her words except saying in a bland

way that it was a letter from a sister to a brother.

The trial court rightly discredited her testimony re­

lating to her answers with respect to the contents of

the letter. The letter shows a correspondence bet­

ween her and lVlahendra which was clearly unworthy

of a faithful wife and her pose of innocence by cha:

racterising

it as between a sister and a brother is

manifestly disingenuous. Her explanation, if any, is

wholly unacceptable.

The plaintiff naturally got

sus­

picious of h\s wife and naturally taxed her with re­

ference to the contents of the letter. That she had

a guilty mind in respect of the Jetter is shown by

the fact that she at first denied having written any

such letter to Mahendra, a denial in which she per­

sisted even in her answer to the plaint. The plain­

tiff's evidence that he showed her a photostatic copy

of that Jetter on May 23, 1947, and that she then

admitted having written that letter and that she had

tender feelings for Mahendra can easily be believed.

The learned trial Judge was therefore justified in

coming to the conclusion that the letter betrayed on

. the part of the writer "a consciousness of guilt". But

it is questionable how far the learned Judge was justi­

fied in observing further that the contents of the

-

S.C.R. SUPREME COURT REPORTS 857

letter "are only capable of the interpretation that she 19

5

6

had misbehaved with lahendra during the absence 8

,,,. Ch d

f h l

· ·ff" If h b h d " · b t,-tn an er

o t e p amt1 . {l meant y t e wor mis e-Jaisinglrhhai s1ra11

haved" that the defendant had sexual intercourse v.

with Mahendra, he may be said to have jumped to the Prabhat<'ati

conclusion which did not necessarily follow as the

only conclusion from them. The very fact that a

married girl was writing amorous letters to a man

other than her husband was reprehensible and easily

capable of furnishing good grounds to the husband

for suspecting the wife's fidelity. So far there can be

no difficulty

in assuming that the husband was fully

justified

in losing temper with his wife and in insist-

ing upon her repentance and assurance of good con-

duct in future. But we are not prepared to say that

the contents of the letter are capable of only that in-

terpretation and no other.

O'n the other hand, the

learned Judges of the Appeal Court were inclined to

view this letter as an evidence merely of what is

sometimes

characterised as

"platonic love" between

two persons who by reasons

of bond of matrimony

are compelled to restrain themselves and not to go

further than merely showing love and devotion for

each

other. We are not prepared to take such a

lenient, almost indulgent, view of the wife's conduct

as betrayed in the letter in question. We cannot but

sympathise with the husband in taking a very serious

view

of the lapse on the wife's part. The learned

Judges of the Appeal

Court have castigated the

counsel for the plain tiff for putting those questions

to the defendant in cross-examination. They observe

in their judgment (speaking through the Chief Ju~tice)

that there was no justification for the counsel for the

plaintiff to put to the defendant those questions in

cross-examination suggesting that she had intercourse

with Mahendra as a result of which they were appre-

hending future trouble in the shape of pregnancy and

illegitimate child birth. It is true that it was not in

terms the plaintiff's case that there had beeu an

adulterous intercourse between the defendant and

Mahendra. That need not have been so, because the

Act does not recognise adultery as one of the grounds

Sinha J.

858 SUPREME COURT REPORTS [1956]

195

6 for divorce. But we do not agree with the appellate

B·p· Ch a Court that those questions to the defendant in cross-

Jai.:i~;hbh:~

8

';;0

,. examination were not justified. The plain tiff proposed

v. to prove that the discovery of the incriminating

Pmbhau·ati letter containing those mysterious sentences was the

Sinha J.

occasion for the defendant to n'lake up her mind to

desert the plaintiff. We do not therefore agree with

the observations of the appellate Court in all that

they have said in respect of the letter in question.

There can be no doubt that the letter in question

made the plaintiff strongly suspicious of his wife's

conduct (to put it rather mildly), and naturally he

taxed his wife to know from her as to what she had

to say about her relations with Mahendra. She is

said to have confessed to him that Mahendra was a

better man than the plaintiff and that he loved her

and she loved him. When matters had come to such

a

head, the natural reaction of the parties would be

that the husband would get not only depressed, as the

plaintiff admitted in the witness box, but would in

the first blush think of getting rid of such an

unlov­

ing, if not a faithless, wife. The natural reaction of

the defendant would be not to face the husband in

that frame of mind. She would naturally wish to be

out of the sight of her husband at least for some time,

to gain time for trying, if she was so minded, to re­

establish herself in her husband's estimation and

affection, if not love. The event of the afternoon of

May 24, 1947, must therefore be viewed in that light.

There was going to be performed the marriage of the

defendant·'s cousin at her father's place of business in

Jalgaon, though it was about five to six weeks from

then. The plaintiff would make it out in his evidence

that she left rather in a recalcitrant mood in the

afternoon during his absence in office with all her be­

longings and that she had refused his offer of being

sent in his car to station and Rs. 100 for expenses.

This conduct on the part of the wife can easily be ex­

plained as that of a person who had found that her

love letter had been discovered by the husband. She

would naturally try to flee away from the husband

for the time being at least because she had not the

....

s.c.R. SUPREME COURT REPORTS 859

moral courage to face him. The question is whether

1

9

5

6

her leaving her marital home on the afternoon of May 8

.,,. Ch d

. l h h . d t d •yin an er

24, 1947, is only consistent wit l er avmg eser e Jaisinghbhai Shah

her husband, in the sense that she had deliberately v.

decided permanently to forsake aH relationship with Prabhawati

her husband with the intention of not returning to

consortium, without the consent of the husband

and against his wishes. That is the plaintiff's

case. May

that conduct be not consistent with the

defendant's case that she had not any such intention,

i.e., being in desertion? The following observations of

Pollock, M. R. in Thomas v.

Thomas(1) may usefully

be

quoted in this connection:- "Desertion is not a single act complete in itself

and revocable by a single act of repentance.

The

act of departure from the other spouse

draws its significance from the purpose with which

it is done, as revealed by conduct or other

expres­

sions of intention: see Charter v. Charter(

9

). A mere

temporary parting is equivocal, unless and until its

purpose and object is made plain.

I agree .with

the observations of

Day J. in Wilkin­

son v. Wilkinson(

3

)

that desertion is not a specific act,

but a course of conduct. As Corell Barnes J. said in

Sickert v. Sickert(1): 'The party who intends bringing

the cohabitation to an end, and whose conduct in

reality causes its termination, commits the act of

desertion'. That conduct is not necessarily wiped out

by a letter of invitation to the wife to return".

The defendant's further case that she had been

turned out of the house by the husband under duress

cannot be accepted because it is not corroborated

either by circumstances or by direct testimony.

Neither her father nor her cousin say a word about

her speaking to them on her arrival at Jalgaon that

she had been turned out of her husband's home. If

her case that she had been forcibly turned out of her

marital home by the husband had been made out,

certainly the husband would have been guilty of

"constructive desertion", because the test is not who

(11 (1924) P. 194.

(3) 58 J.P. 415.

(2)

84 LT. 272

(41 (1899) P. 278, 28~.

Sinha J.

860 SUPREME COURT REPORTS [1956]

1956 left the matrimonial home first. (See Lang v. Lang(1)).

B

·~· Ch d If one spouse by his words and conduct compel the

•.r•n an et' h · .

Jaisinghbhai Shah ot er spouse to leave the manta! home, the former

v. would be guilty of desertion, though it is the latter

Prabhawali who has physically separated from the other and has

been made to leave the marital home. It should be

SinlurJ. noted that the wife did not cross-petition for divorce

or for any other relief. Hence it is no more neces­

sary for us to go into that question. It is enough to

point out that we are not prepared to rely upon the

uncorroborated testimony of the defendant that she

had been compelled to leave her marital home by the

threats of the plaintiff.

The happenings of May 24, 1947, as pointed out

above, are consistent with the plaintiff's case of

desertion by the wife. But they are also consistent

not with the defendant's case as actually pleaded in

her written statement, but with the facts and circum­

stances disclosed in the evidence, namely, that the

defendant having been discovered in her clandestine

amorous correspondence with her supposed paramour

Mahendra, she could not face her husband or her hus­

band's people living in the same flat in Bombay and

therefore shamefacedly withdrew herself and went to

her parent's place of business in Jalgaon on the pre­

text of the marriage of her cousin which was yet far

off. That she was not expected at Jalgaon on that

day in connection with the marriage is proved by her

own admission

in the witness box that

"when I went

to J algaon everyone was surprised". As pointed out

above, the burden is on the plaintiff to prove deser­

tion without cause for the statutory period of four

years, that is to say, that the deserting spouse must

be in desertion throughout the whole period. In this

connection the following observations of Lord :Mac­

millan in his speech in the House of Lords in the case

of Pratt v. Pratt(') are apposite:-·

"In my opinion what is required of a petitioner for

divorce

on the ground of desertion is

proof that

"throughout the whole course of the three years the

respondent has without cause been in desertion. The

(1) [1955) A.O. 402. 417. (2) [1939] AC. 417, 420.

-

r

-

S.0.R. SUPREME COURT REPORTS 861

deserting spouse must be shown to have persisted in 1956

the intention to desert throughout the whole period.

8

.,,.

Ch

d

. . d f d . . h h th tylff att er

In fulfillmg its uty o etermmmg w et er on e Jaisinghbhai Shah

evidence a case of desertion without cause has been v.

proved the court ought not, in my opinion, to leave Prabhawati

out of account the attitude of mind of the petitioner.

If on the facts it appears that a petitioning husband

has made it plain to his deserting wife that he will

not receive her back, or if he has repelled all the

advances which she may have made towards a resump-

tion of married life, he cannot complain that she

has persisted without cause in her desertion".

It is true that the defendant did not plead that she

had left her husband's home in Bombay in the cir­

cumstances indicated above. She, on the other hand,

pleaded constructive desertion by the husband. That

case, as already observed, she has failed to sub­

stantiate by reliable evidence. But the fact that the

defendant has so failed does not necessarily lead to

the conclusion that the plaintiff has succeeded in prov­

ing his case. The plaintiff must satisfy the court

that the defendant had been in desertion for the

continuous period of four years as required by the

Act. If we come to the conclusion that the happen­

ings of May 24, 1947, are consistent with both the

conflicting theories, it is plain that the plaintiff has

not succeeded in bringing the offence of desertion

home to the defendant beyond all reasonable doubt.

We must therefore examine what other evidence there

is in support of the plaintiff's case and in corrobora­

tion of his evidence in court.

The next event of importance in this narrative is

the plaintiff's solicitor's letter of July 15, 1947, ad­

dressed to the defendant, care of her father at Jalgaon.

The defendant's cousin's marriage was performed

towards the end of June and she could have come

back to her husband's place soon thereafter. Her

evidence is that after the marriage had been per­

formed she was making preparations to go back to

Bombay but her father detained her and asked her to

await a letter from the plaintiff. The defendant in­

stead of getting an invitation from the plaintiff to

112

Sinha),

862 SUPREME COURT REPORTS [1956)

1956 come back to the marital home received the solicitor's

letter· aforesaid, which, to say the least, was not

Biftin Chander l 1 d b • h · Th 1

Jaisinghbhai Shah ?a .cu ate to rmg t e parties nearer. e etter

v. is m these terms:-

Prabhawat; ''Madam,

Under instructions from our client Bi pin Chandra

SinhaJ. J. Shah we have to address you as under:-

That you were married to our client in or about

April 1942 at Patan. Since the marriage you and

our client lived together mostly in Bombay and son

by name Kirit was born on or about the 10th day of

September 1944.

Our client states that he left for Europe in Janu­

ary last and returned by the end of l\Iay last. After

our client's return, our client learnt that during our

client's absence from India you developed intimacy

with one Mahendra and you failed to give any satis­

factory reply when questioned about the same and

left for your parents under the pretext of attending

to the marriage ceremony of your cousin. You have

also taken the minor with you and since then you are

residing with your father to evade any satisfactory

explanation.

Our client states that under the events that have

happened, our client has become entitled to obtain a

divorce

and our client does not desire to keep you any

longer under his care and protection.

Our client de­

sires

the minor to be kept by him and we are

in­

structed to request you to send back the minor to

our client or if necessary our client will send his agent

to bring the minor to him. Our client further states

that in any event it will be in the interest of the

minor that he should stay with our client. Our client

has made this inquiry about the minor to avoid any

unpleasan-tness when our client's agent comes to re­

ceive the minor''.

The letter is remarkable in some respects, apart from

antedating the birth of the son Kirit by a year. The

letter does not in terms allege that the defendant was

in desertion, apart from mentioning the fact that she

had left against the plaintiff's wishes or that she had

done so with the intention of permanently abandon-

-

-

.·

-

S.C.R. SUPREME COURT REPORTS 863

ing her marital duties. On the other hand, it alleges 1956

that "You are residing with your father to avoid any

8

,,,. Ch d

. f 1 . " Th t . t t t '"'" an er

sat1s actory exp anat10n . e mos impor an par Jaisinghbhai Shah

of the letter is to the effect that the plaintiff had v.

"become entitled to obtain a divorce" and that he Prabhawati

"does not desire to keep you any longer under his care

and protection". Thus if the solicitor's letter is any

indication of the working of the mind of the plaintiff,

it makes it clear that at that time the plaintiff did

not believe that the defendant had been in desertion

and that the plaintiff bad positively come to the de-

termination that he was no longer prepared to affirm

the marriage relationship. As already indicated, 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 fulfil his or her

part of the marital duties. The statement of the law

in para 457 at p. 244 of Halsbury's Laws of England

(3rd Edn.

Vol. 12) may be usefully quoted:

"The burden is on the petitioner to show that

desertion without cause subsisted throughout the

statutOl'y period. The deserting spouse must be shown

to have persisted in the intention to desert through­

out the whole of the three year period. It has been

said

that a petitioner should be able honestly to say

that be or she was all along willing to fulfil the duties

of the marriage,

and that the desertio~ was against

his or her will, and continued throughout the statu­

tory period without his or her consent; but in practice

it is accepted that once desertion has been started by

the fault of the deserting spouse, it is no longer

necessary for

the deserted spouse to show that dur­

ing

the three years preceding the petition he or she

actually wanted the other spouse to come back, for

the intention to desert is presumed to continue. That

presumption may, however, be

rebutted".

Applying those observations to the facts of the

present case, can the plaintiff honestly say that he

was all along willing

to fulfil the duties of the marriage

and that the defendant's desertion, if any, continued

throughout the statutory period without his consent.

The letter, Ex. A, is an emphatic no. In the first

SinhaJ

864 SUPREME COURT REPORTS [1956]

1956 place, even the plaintiff in that letter did not allege

BF Ch any desertion and, secondly, he was not prepared to

Jai;i~;hbh:7~';ah receive her back to the matrimonial home. Realising

v. his difficulty when cross-examined as to the contents

Prabhawati of that letter, he wished the court to believe that at

the time the letter was written in his presence he was

SinhaJ. "in a confused state of mind" and did not remember -

exactly whether he noticed the sentence that he did

not desire to keep his wife any longer. Pressed fur-

ther in cross-examination, he was very emphatic in

his answer and stated:-

"lt is not true that by the date of this letter I

had made up my mind not to take her back. It was

my hope that the letter might induce her parents to

find out what had happened, and they would per­

suade her to come back. I am still in the confused

state of mind that despite my repeated attempts my

wife puts me off".

In our opinion, the contents of the letter could not

thus be explained away by the plaintiff in the witness

box. On the other hand, it sh_ows that about seven

weeks

after the wife's departure for her father's place

the plaintiff had at least for the time being convinced

himself

that the defendant was no more a suitable

person to live with. That, as found by us, he was

justified

in this attitude by the reprehensible conduct

of his wife during his absence is beside the point.

This letter has an importance of its own only in so

far as it does not corroborate the plaintiff's version

that the defendant was in desertion and that the

plaintiff was all along anxious to induce her to come

back to him. This letter is more consistent with the

supposition that the husband was very angry with

her on account of her conduct as betrayed by the

letter, Ex. E and that the wife left her husband's

place in shame not having the courage to face him

after that discovery. But that will not render her in

the eye of the law a deserter, as observed by Pollock,

M. R. in Bowron v. Bowron(1) partly quoting from

Lord Gorell as follows:-

"In most cases of desertion the guilty party

(1) [ 1925] P. 187, 192.

..

S.C.R. SUPREME COURT REPORTS 865

actually leaves the other, but it is not always or 1956

necessarily the guilty party who leayes the matrimo-

8

,,,. Ch d

. 1 h I . . th t h . t d i,,in an er

ma ome. n my opm10n, e par y w o m en s Jaisinghbhai s11ah

bringing the cohabitation to an end, and whose con- v. ·

duct in reality causes its termination, commits the Prabhawati

act of desertion: See also Graves v. Graves(1); Pulford

v. Pulford(

2

); Jackson v. Jackson(

5

); where Sir Henry

Duke P. explains the same doctrine. You must look

at the conduct of the spouses and ascertain their real

intention".

It is true that once it is found that one of the

spouses has been in desertion, the presumption is that

the desertion has continued and that it is not neces­

sary for the deserted spouse actually to take steps to

bring the deserting spouse back to the matrimonial

home. So far we do not find any convincing evidence

in

proof of the alleged desertion by the wife and

naturally therefore the presumption of continued

desertion cannot arise.

But it

is not necessary that at the time the wife

left her husband's home she should have at the same

time the animus desere,ndi. Let us therefore examine

the question whether the defendant in this case, even

if she had no such intention at the time she left Bom­

bay, 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 Lang v. Lang(

4

)

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 deser­

tion; secondly, the 'animus d~serendi'-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 matri­

monial home. The contest in such a case will be

almost entirely as to the 'animus'. Was the intention

(1) 8 Sw. & Tr. 350.

(3) [1924) P. 19.

(2) [1928] P. 18.

(4) (1955) A.O. 402, 417.

Sinha J.

866 SUPREME COURT REPORTS (1956]

7956 of the party leaving the home to break it up for good,

B

.•. Ch d or something short of, or different from that?"

i"'in an er

Jaisingl1bhaiShah In this connection the episode of November, 1947,

· v. when the plaintiff's mother came from Pa tan to Bom-

Prabhaw•ti bay is relevant. It appears to be common ground now

that the defendant had agreed to come back to Bom­

bay along with the plaintiff's mother or after a few

days.

But

on this information being given to the

S.inha J,

plaintiff he countermanded any such steps on the

wife's part by sending the telegram, Ex. B, aforesaid

and the plaintiff's father's letter dated November 15,

1947. We

are keeping out of consideration for the

present the letter, Ex.

C, dated November 13, 1947,

which is

not admitted to have been received either

by the defendant or her father. The telegram is in

peremptory terms:

"Must not send Prabha''. The letter

of November 15, 1947, by the plaintiff's father to the

defendant's father is equally peremptory. It says "It

is absolutely necessary that you should obtain the

consent of Chi. Bipinchandra before sending Chi.

Prabhavati". The telegram and the letter which is

a supplement to the telegram, as found by the courts

below, completely negative the plaintiff's statement

in court that he was all along ready and willing to

receive the defendant back to his home. The letter

of November 13, 1947, Ex. C, which the plaintiff

claims to have written to his father-in-law in expla­

nation of the telegram and is a prelude to it is

altogether out of tune with the tenor of the letter

and the telegram referred to above. The receipt of

this letter has been denied by the defendant and her

father. In court this letter has been described as

a fake

in the sense that it was an afterthought and

was written with a view to the legal position and

particularly with a view to getting rid of the effect

of the solicitor's letter of July 15, which the plaintiff

found it hard to explain .away in the witness box.

Neither the trial court, which was entirely in favour

of the plaintiff and which had accepted the letter as

genuine, nor the appellate

Court, which was entirely

in favour of the defendant has placed implicit faith in

the bona fides of this lEftter. The lower appellate Court

,·

-

-

S.C.R. SUPREME COURT REPORTS 867

is rather ironical about it, observing "This letter as

1

956

it were stands in isolated glory. There is no other

8

.,,. .. Ch d

· h d f h 1 · t"ff h" h i,,in an er

letter. There IS no ot er con uct o t e p am I w IC Jaisinghbhai Shah

is consistent with this letter". Without going into the v.

controversy as to the genuineness or bona fides of Prabhawati

this letter, it can be said that the plaintiff's attitude,

as disclosed therein, was that he was prepared to take

her back into the matrimonial home provided she

wrote a

letter to him expressing real repentance and

confession of mistake. This attitude of the plaintiff

cannot be said to be unreasonable in the circum-

stances of the

0ase. He was more sinned against than

sinning at the beginning of the controversy between

the husband and the wife.

This brings us to a consideration of the three at­

tempts alleged by the plaintiff to have been made

b.y him to induce his wife to return to the matrimonial

home when he made two journeys to Patan in 1948

and the third journey in April-May, 1949, to Jalgaon.

These three visits are not denied by the defendant.

The only difference betwe~n the parties is as to the

purpose of the visit and the substance of the talk bet­

ween them. That the plaintiff's attachment for the

defendant had not completely dried up is proved by

the fact that when he came to know that she had

been suffering from typhoid he went to Patan to see

her. On this occasion which was the second visit the

plain tiff does not say that .he proposed to her to come

back

and that she refused to do so.

He only says

that she did not express any desire to come back.

That may be explained as being due to diffidence on

her part. But in respect of the first and the third

visits the plaintiff states that on both those occasions

he

wanted her to come back but she refused.

On the

other hand, the defendant's version is that the pur­

pose of his visit was only to take away the child and

not to take her back to his home. It is also the

plaintiff's complaint that the defendant never wrote

any letter to him offering to come back. The wife's

answer is that she did write a few letters before the

solicitor's letter was received by the father and that

thereafter under her father's advice she did not write

Sinha J.

868 SUPREME COURT REPORTS (1956)

1956 any more to the_ plaintiff. In this connection it be-

B

·•. Ch d comes necessary to examine the evidence of her cousin

i.l'1n an er B b I d h f h .

Jaisinghbhai Shah a ula an er at er Popatlal. Her cousm, Babula!,

v. who was a member of her father's joint family, deposes

Prabhawati that on receipt of the letter, Ex. A, a fortnight later

Sinha J.

he and his father, since deceased, came to Bombay

and saw the plaintiff. They expostulated with him

and pleaded the defendant's cause and asked the

plaintiff to forgive and forget and to take her back.

The plaintiff's answer was that he did not wish to

keep his wife. The defendant's father's evidence is

to the effect that after receipt of the letter, Ex. A, he

came

to Bombay and saw the plaintiff's father at his

residence

and protested to him that

"a false notice

had been given to us". The plaintiff's father is said

to have replied that they "would settle the matters

amicably". He also deposes as to his brother and h!s

brother's son having gone to the plaintiff. He further

states that he with his wife and the defendant wen}

to Patan and saw the plaintiff's mother and in con­

sultation with her made arrangements to send her

back to Bombay. But before that could be done, the

telegram, Ex. B, and the letter, Ex. D, were received

and consequently he gave up the idea of sending the

defendant to Bombay without straightening matters.

Both these witnesses on behalf of the defendant

further deposed to the defendant having gone several

times

and stayed with the plaintiff's family, particu­

larly his mother at Patan along with the boy. The

evidence

of these two witnesses on behalf of the

defendant is ample corroboration of the defendant's

case and the evidenee in court that she has all

along been

ready and willing to go back to the

matrimonial home. The learned trial Judge has not

noticed this evidence and we have not the advantage

of his comment

o!l this corroborative evidence. This

body of evidence is in consonance with the natural

course of events. The plaintiff himself stated

in the witness box that he had sent the solicitor's

letter by way of a shock treatment to the defen­

dant's family so that they might persuade his wife to

come back to his matrimonial home. The subsequent

.-

-

"

S.C.R. SUPREME COURT REPORTS 869

telegram and letters (assuming that both the letters 795

6

of the 13th and 15th Nove~ber had been posted in Bipin Chander

the usual course and received by the addressees) Jaisittghbhai Shah

would give a shock to the family. Naturally there- v.

after the members of the family would be up and Prabhawati

doing to see that a reconciliation is brought about

between the husband and the wife. Hence the visits SinliaJ.

of the defendant's uncle and the father would be a

natural conduct after they had been apprised of the

rupture between them. We therefore do not see any

sufficient reasons for brushing aside all that oral evi-

dence which has been believed by the Lower Appellate

Court and had not in terms been disbelieved by the

trial court. This part of the case on behalf of the defen-

dant and her evidence is corroborated by the evidence

of the defendant's relatives aforesaid. It cannot be

seriously

argued that that evidence should be dis-

believed, because

the witnesses happened to be the

defendant's relatives. They were naturally the parties

most interested in bringing about a reconciliation.

They were anxious not only for the welfare of the

defendant but were also interested in the good name

of the family and the community as is only natural in

families like these which have not been so urbanised

as to completely ignore the feelings of the community.

They would therefore be the persons most anxious in

the interests of all the parties concerned to make

efforts to bring the husband and the wife together

and to put an end to a controversy which they con-

sidered to be derogatory to the good name and

prestige of the families concerned. The plaintiff's

evidence, on the other hand, on this part of the case

is

uncorroborated. Indeed his evidence stands

un­

corroborated in many parts of his case and the letters

already discussed run counter to the tenor of his evi-

dence

in court.

We therefore feel inclined to accept

the defendant's case that after her leaving her hus-

band's home and after the perfo:mance of her cousin's

marriage she was ready and willing to go back to her

husband. It. follows from what we have said so far

that the wife was not in desertion though she left her

husband's home without any fault on the part of the

ll3

870 SUPREME COURT REPORTS [1956]

1956 plaintiff which could justify her action in leaving him,

BF c d and that after the lapse of a few months' stay at her

10,;,~;hb~=~ ;:ah father's place she was willing to go back to her

v. matrimonial home.

Prabllawati This conclusion is further supported by the fact

that between 1948 and 1951 the defendant stayed

SinhaJ. with her mother-in-law at Patao whenever she was

there, sometimes for months, at other times for

weeks.

This conduct is wholly inconsistent with the

plaintiff's case that the defendant was in desertion

during the four years that she was out of her

matri­

monial home. It is more consistent with the defen­

dant's attempts to get herself re-established in her

husband's home after the rupture in May 1947 as

aforesaid.

It is also in evidence that at the

sugges­

tion of her mother-in-law the defendant sent her three

year old son to Bombay so that he might induce his

father to send for the mother. The boy stayed in

Bombay for 11bout twenty days and then was brought

back to ·Patao by his father as he (the boy) was

unwilling

to stay there without the mother. This was

in August-September 1948 when the defendant

de­

poses to having questioned her husband why she had

not been called back and the husband's answer was

evasive.

Whether or not this statement of the

defen­

dant is true, there can be no doubt that the defendant

would not have allowed her little boy of about three

years of age to be sent alone to Bombay except in the

hope that he might be instrumental in bringing about

a reconciliation between the father and the mother.

The defendant has deposed to the several efforts made

by her mother-in-law and her father-in-law to inter­

cede on her behalf with the plaintiff but without any

result. There is no explanation why the plaintiff

could not examine his father and mother in corrobo­

ration of his case of continuouii desertion for the

statutory period by the defendant. Their evidence

would

have been as valuable, if not more, as that of

the

defenda.nes father and cousin as discussed above.

Thus it is not I case where evidence was not available

in corroboration of the plaintiff's case. As the plain­

tiff's evidence on many important aspects of the case

..

-

S.C.R. SUPREME COURT REPORTS 871

has remained uncorroborated by evidence which could 1956

be available to him, we must hold that the evidence Bp· Ch d

given by the plaintiff falls short of proving bis case Jai;,~;hbh;; s~;ah

of desertion by his wife. Though we do not find that v.

the essential ingredients of desertion have been Prabhawati

proved by the plaintiff, there cannot be the least

doubt that it was the defendant who had by her

objectionable conduct

brought about a rupture in the

matrimonial home and caused the plaintiff to become

so cold

to her after she left him.

In view of our finding that the plaintiff has failed

to prove his case of desertion by the defendant, it is

not necessary to go into the question of animus

revertendi

on which considerable argument with refer­

ence

to case-law was addressed to us on both sides.

For the aforesaid

reasens we agree with the Appellate

Bench

of the High

Court in the conclusion at which

they had arrived, though not exactly for the same

reasons.

The appeal is accordingly dismissed. But as

the trouble started on account of the defendant's con­

duct, though she is successful in this

Court, we direct

that each party must bear its own costs throughout.

Appeal dismissed.

Sinha J.