J.N. Hore, J.@mdashThis is an appeal by the wife against the judgment and decree of divorce dated September 23, 1981 passed by the learned Additional District Judge, 3rd Court, Nadia in Matrimonial Suit No. 68 of 1988.
2. Petitioner-husband Nitya Gopal Bhattacharjee instituted the said matrimonial suit against the wife-respondent Kamala alias Rita Bhattacharjee who is appellant before us for dissolution of marriage by a decree of divorce on the grounds of adultery and desertion u/s 13 of the Hindu Marriage Act.
3. The petitioner''s case was that he married the respondent on 20th Asar, 1973 B.S. corresponding to 19-7-66 according to Hindu rites. The petitioner was a police constable and he was posted at different places like Santipur, Newadeep and Krishnanagar. In 1975 the petitioner was posted at Krishnanagar and took a rented flat for residence at Naluapara. There was another tenant in another room named Sudharani Biswas. During that period the petitioner was acquainted with one Premankur Bhattacharjee who used to come to the house of the petitioner. He developed intimacy with the respondent and used to visit the petitioner''s house even in the absence of the petitioner and used to take the respondent outside and also to cinema shows. Petitioner''s two sons were aged 8 and 4 years at the relevant time. On 14th or 15th July, 1975 while the petitioner was in Krishnanagar Police line the respondent left the petitioner''s house with the youngest child along with Premankur Bhattacharjee keeping the room under lock and key and leaving the key with another tenant Sudharani Biswas. The petitioner after coming from his office came to know about the incident. The respondent deserted the petitioner and went to her father''s house at Kalyani. She is working there as a Special Aya in the J.N.M. Hospital. The petitioner''s eldest son used to cry and accordingly he sent him to the respondent. The respondent deserted the petitioner without any reasonable cause and did not return to the petitioner for two years after her desertion. It was alleged that the respondent was leading an immoral life. She often passed nights with various persons. It was further alleged that Premankur after enjoying the respondent for some time left her and his where abouts were not known.
4. The respondent in her written objection denied the material allegations made by the petitioner. Her case inter alia was that sometime in 1975, the petitioner used to sell his quota of ration for rise and other commodities and did not deliver the same to the respondent for preparing food for the respondent and her children. Sometimes the petitioner did not attend his duties for which his full pay was not drawn and the petitioner also did not arrange for food and maintenance of the respondent. This continued for a long time and it was revealed that the petitioner had illicit connection with one Umarani Das of Dharandarh near Muragachha. The petitioner married the said Umarani Das, during the subsistence of his marriage with the respondent and was now living with Umarani Das in the house of Dhirendra Nath Basu at Halishar. The respondent did not know any person named Premankur Bhattacharjee and Premankur Bhattacharjee pever visited the respondent in the house of the petitioner and she never left the matrimonial home with Premankur Bhattacharjee as alleged by the petitioner. The respondent''s case was that after prolonged cruelty, ill-treatment and torture the respondent had no alternative but to go to her father''s house at Kalyani along with her youngest son 1976. The eldest son was left by the petitioner in an emaciated condition near her house. The petitioner did not care to maintain his wife and sons.
5. At the time of trial the petitioner did not press the issue regarding the alleged adultery. Upon consideration of the evidence on record the learned Judge has held that the respondent deserted the petitioner without any reasonable cause in July 1975, more than two years before the date of the institution of the suit. He accordingly passed a decree for divorce solving the marriage between the parties on the ground of desertion. Being aggrieved by the said judgment and decree the respondent-wife has preferred the present appeal.
6. Mr. Basu, learned Advocate for the appellant, has strenuously contended that the petitioner-husband has hopelessly failed to prove the alleged desertion by the appellant wife and that the facts and circumstances as proved in the evidence unmistakably point to the conclusion that it was the petitioner husband who was guilty of constructive desertion and the appellant wife, even if she left the matrimonial home voluntarily had no animus deserendi and had sufficient reason not, to return to matrimonial home to resume cohabitation.
7. Before proceeding to examine the evidence on record and consider the submissions made by Mr. Basu, it would be fruitful to consider what desertion really means and what is to be proved by the petitioner against the respondent. In Matrimonial Jurisprudence desertion means, desertion of one spouse by the other without reasonable cause and without the consent of that other. It has been defined in the Explanation to Section 13(1) of the Hindu Marriage Act as "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." In order to constitute desertion within the meaning of the Explanation to Section 13(1) while there must be two elements present on the side of the deserting spouse, namely, the factum of his or her withdrawal and the accompanying animus deserendi i.e. intention to bring cohabitation permanently to an end, there must also be two elements present on the said of the spouse claiming to be deserted, namely, absence of his or her consent and the absence of conduct on his or her part giving the deserting spouse reasonable cause to form the animus deserendi.
8. The question as to what precisely constitutes "desertion" came up for consideration before the Supreme Court in an appeal from Bombay where the Supreme Court has to consider the provisions of Section 3(1) of the Bombay Hindu Divorce Act, 1947 whose language is in part materia with that of Section l0(l) of the Hindu Marriage Act. In the Judgment of the Supreme Court in
"In its essence desertion means the Intentional permanent for saking and abandonment of one spouse by the other without that other''s consent and without 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."
The position was thus further explained by the Supreme Court:
"If a spouse abandonds the other spouse in a state of 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 :
(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............................................................
Desertion is 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."
9. The enunciation of the law-on the topic in Bipin Chandra''s case (supra) was followed by the Supreme Court in entirety in the later case of
10. It is settled law that the burden of proving desertion the "factum" as well as the "animus deserendi", is on the petitioner; and he or she has to establish to the satisfaction of the Court, the desertion throughout the entire period of two years before the petition as well as that such desertion was without just cause. In other words, even if the wife, where she-is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband has still to satisfy the Court that the desertion was without just cause, [vide
11. In the case of Lachman tamchand Kirpalani (supra), the Supreme Court has further observed as follow :
"Once desertion, as defined earlier, is established there is no obligation on the deserted husband (taking the case he is the deserted spouse) to appeal to the deserting spouse to change her mind, and the circumstance that the deserted husband makes no effort to take steps to effect a reconciliation with the wife does not debar him from obtaining the relief of judicial separation, for once desertion is proved the deserting spouse, so long as she evidence no sincere intention to effect a reconciliation and return to the matrimonial home, is presumed to continue in desertion, of course, the matter would wear a different complexion and different considerations would arise where before the end of the statutory period of 2 years or even thereafter before the filing of the petition for judicial separation the conduct of the deserted spouse was such as to make the deserting spouse desist from making any attempt at reconciliation. If he or she so acts as to make it plain to the deserting spouse that any offer on the part of the latter to resume cohabitation would be rejected, then the deserting spouse could obviously not be blamed for not bringing the desertion to an end. Or again, if before the end of the period of two years or the filing of the petition his or her conduct is much as to provide a just cause for the deserting spouse for not resuming cohabitation, the petition cannot succeed, for the petitioner would have to establish that desertion was without just cause during the entire period referred to in Section 10(l)(a) of the Act before he can succeed."
12. Bearing the above principle of law in mind let us now proceed to consider the evidence and the facts and circumstances of the case and see whether the petitioner husband has been able to prove satisfactorily the alleged desertion by the respondent wife. Admittedly, the parties were married in July, 1967 and at the time of the alleged desertion in 1975, they had two sons aged about 8 years, 4 years respectively. They had another child, a daughter, who died before 1975. The petitioner is a police constable and at the material time he was posted at Krishnanagar. The petitioner was living with his wife and children in a rented room at Naluapara. It is not disputed that the respondent wife who is appellant before us has been living separately at the house of her father since July, 1975. According to the petitioner, the respondent developed illicit intimacy with one Premankur Bhattacharjee who was an employee at the local fertiliser office and a friend of the petitioner. The further case of the petitioner is that the respondent-wife left the matrimonial home in company of the said Premankur Bhattacharjee on July 15, 1975 after leaving the key to PW 2 Sudharani Biswas a co-tenant. If the respondent really eloped with her paramour as alleged she had certainly animus reversendi and no animus reversendi. The respondent''s version is, on the other, hand, she was physically assaulted and not even given food. The petitioner husband developed illicit intimacy with a woman named Umarani Das and she was ultimately driven out by the petitioner from the matrimonial home and since then she had been living with her father. Now, there was no evidence worth the name that the respondent had intimacy with any person named Premankur Bhattacharjee. The petitioner did not press the issue of adultery at the time of trial. The only evidence in this regard is that of the petitioner husband himself who was examined as PW 4 which is to the effect that Premankur Bhattacharjee was his friend and he intro luced him to his wife after inviting him to his house. Thereafter he use to list his house occasionally and talk to his wife. Subsequently, he same to Know that Premankur used to stay at his house at night during his absence. This statement is not a substantive evidence and is inadmissible in the absence of examination of the person who had direct knowledge of the incident and reported it to the witness. Even PW 2 Sudharani Biswas, a co-tenant of the adjoining room in the same house has not stated anything about visit of Premankur Bhattacharjee to the house of the husband petitioner in his absence, and not to sneak of his stay at the house at night during his absence. In fact, PW 2 has not stated anything about the alleged intimacy between the wife-respondent and Premankur Bhattacharjee. There is, therefore, no evidence whatsoever in support of the petitioner''s allegation that the respondent-wife had developed illicit intimacy with Premankur Bhattacharjee ever visited their house and she asserted not she did not know any such person. Premankur Bhattacharjee was not made a co-respondent and the explanation of the petitioner that the whereabouts of Premankur Bhattacharjee were not known- to him is hardly convincing. He did not make any enquiry at -the local fertiliser office. A little enquiry would have revealed the whereabouts of Premankur Bhattacharjee if he was transferred from Krishnanagar to any other place.
13. There is also no cogent evidence that the wife respondent left the matrimonial home in the company of the said Premankur Bhattacharjee. The only evidence in this regard is the testimony of PW 2 Sudharani Biswas. Her testimony is that about 6 years before in the month of Sraban when petitioner Nityagopal was in the police lines, his wife left the matrimonial home with Premankur Bhattacharjee and her youngest son Tinku and Tinku gave her the key and asked her to inform his father when he would return from police line. Nityagopal returned at 12.30 p.m. and he gave the key to him. Apart from the inherent improbability of (he story that the respondent wife eloped with her paramour in broad day light in presence of PW 2 requesting her to give the key to her husband when he would return home, her testimony is falsified by the petitioner himself. According to the petitioner, when he returned at about 12.30 p.m. he found his eldest son Bapi crying. Bapi reported to him that his mother left home keeping the key in the custody of PW 2 Subharani. On his query Sudharani reported to him that Kamala left the house as she would not live with him and that the key of the house was given to her by Tinku. The evidence of the petitioner, therefore, clearly shows that PW 2 did not disclose to him shortly after the occurrence that the respondent left home in the company of Premankur Bhattacharjee. This fact shows that the testimony of PW 2 to the effect that Kamala left the matrimonial home in the company of Premankur Bhattacharjee is a subsequent improvement and embelishment and must be discarded. It is to be noted here that the part of the testimony of PW 4 to the effect that PW 2 reported to him that Kamala said that she would not live with him cannot be accepted inasmuch as PW 2 Sudharani has not said so. So, the entire story that Kamala developed intimacy with Premankur Bhattacharjee and because of her infatuation for him she left the matrimonial home for good in his company must be discarded. The petitioner, has, therefore, hopelessly failed to prove the alleged desertion by the respondent wife including animus deserendi.
14. In support of her case the respondent wife has deposed that the petitioner husband did not properly maintain her and her children. He did not provide for food and clothing for them and assaulted her and ultimately forcibly drove her out from the house in 1975. She has further deposed at her husband is at present living at Lallickbag Colony at Halisathar as a tenant in the house of Dhiren Bose along with another woman named Uma Bhattacharjee whom he has married. Her testimony is corroborated by her eldest son PW 2 Nirmal Bhattacharjee. He has deposed that her father assaulted his mother and drove her out from the house. He was not allowed to go with his mother. Thereafter his father married Umarani, daughter of Ranjit Das of Muragachha. His step-mother used to assault him and did not give him proper food. Thereafter, they shifted to another house at College Street. A few days after he was taken to Kalyani and left near the house of his maternal grand-father. The learned Judge disbelieved the testimony of Nirmal on the ground that at the relevant time he was aged only 8 years. He has not however, found that he is a tutored witness. In our opinion, his testimony should not be discarded only because he was aged about 8 years at the time of the occurrence. His testimony is very straight-forward, was cross-examined at length, but was not shaken in the least. His evidence are received corroboration from other witnesses. There is no reason to disbelieve his testimony.
15. Upon a consideration of the evidence we are, therefore, inclined to accept the wife''s version that she was treated with torture and cruelty and was not provided with proper maintenance and was driven out from the matrimonial home. There was, therefore, no desertion of the petitioner by the respondent wife.
16. Even if it be assumed that the petitioner was not guilty of illtreatment and torture and Kamla left the matrimonial home voluntarily, there would be no desertion of the petitioner by his wife Kamla in the facts and circumstances of the case. We have already seen that the charge of living in adultery which was levelled by the petitioner against the wife was not sought to be proved and was given up at the time of trial. The charge in false and the petitioner had wantonly levelled that charge against the wife, knowing it to be false. The fact that the petitioner had levelled false charge of adultery against the wife, or suspected her character, would afford a reasonable excuse to the wife to refuse to. live with petitioner or to cohabit with his unless he made amends by apologising or otherwise placating the wife. In
17. We are satisfied from the evidence that the petitioner has been living with another woman named Uma Rani Das as husband and wife. It has been elicited in the cross-examination of RW 1 that she came to her husband''s house three months after and found a woman in that house and her husband reported to him that he had married her, we have already referred to the testimony of PW 2 that his father married Uma Rani Das. daughter of Ranjit Das of Muragachha. It was because of illtreatment and torture of his stepmother that he was ultimately left by his father near the house of his maternal grand-father at Kalyani. PW 3 Kamal Chowdhury is friend of the son of Dhiren Bose in whose house at Halisahar Mallick Bag Colony, the petitioner is living as a tenant. He has deposed that he went to the house of Dhiren Bose and saw the petitioner''s wife Uma Bhattacharjee there. PW 4 Gopal Chandra Das also visited the house of the petitioner at College Street, Krishna-nagar where the petitioner introduced him to his new wife Uma Rani Bhattacharjee. Even PW 3 Dhirendra Nath Basu is constrained to admit that some woman occasionally resides with the petitioner. He refers to the woman as a ''bowdi'' of Nitya Gopal though he does not know the name of her husband. The woman is said to the wife of a cousin of Nitya Gopal. He does not know, however, the name of the woman or of the cousin of the petitioner. The petitioner does not say anything about the alleged ''bowdi''. We have no hesitation in holding that the petitioner has been living with one woman named Uma Rani as husband and wife. The question whether there was solemnisation of marriage observing the necessary ceremonies is-not relevant for our consideration. The fact that the petitioner has been living with another woman as husband and wife, affords a sufficient justification to the wife to live separately. By his conduct the petitioner was giving the deserting wife reasonable cause to form the animus deserendi and preventing her from forming animus reverendi during the statutory period. In a matrimonial cause on the ground of desertion, very often the question arises as to who has deserted and who is deserted, because physical act of departure by one spouse does not necessarily make that spouse the deserting party. If a husband persists in doing things which he knows that his wife cannot, and has good reasons not to, tolerate and the wife accordingly has had to leave the home, then it is the husband who has deserted the wife, even though the wife herself has physically left home. If it were necessary for us to decide the question, AC would have had to hold on the materials on record that the husband has deserted the wife but we need not do so that is not precise question before us, the question being whether the wife has deserted the husband. And we decide that question in favour of the wife without hesitation and hold that on the materials on record it has not been proved that she has deserted the husband. The impugned decree for divorce on the ground of desertion passed in favour of the petitioner cannot, therefore, be sustained.
18. In the result, the appeal is allowed with costs. The judgment and decree of the Court below are set aside and the matrimonial suit stands dismissed on contest with costs.
