Joytosh Banerjee, J.@mdashThis appeal is directed against judgement and decree of dismissal passed by Sri P.N. Sinha, Additional District Judge, Alipore on 25.11.94 in Mat. Suit No. 5/90. The plaintiff/appellant wife filed a suit for dissolution of marriage between the parties (describing erroneously the application u/s 12 of the Hindu Marriage Act while in effect the same was u/s 13 of the same Act), alleging inter alia, that the petitioner was married to the respondent according to Hindu rites on 5th May, 1985 at 33/1 Kalighat Road, Police Station Tollygunge, Calcutta - 26. After the said marriage, the petitioner was taken to 12/2 Thakurdas Palit Lane where the petitioner and the respondent lived as husband-wife. It was the allegation of the petitioner in the petition that the respondent started ill treating her in various ways and on many occasions he expressed openly that the petitioner was not up to his liking and he also behaved with the petitioner in a very indifferent way. In fact the respondent never cared to take care of the well being of the petitioner during her stay at the matrimonial home and her food, clothing etc. were left entirely at the mercy of the elder brother''s wife of the respondent who had no love and sympathy for the petitioner. It is specifically stated that the petitioner was never given proper food and clothing during her stay at the matrimonial home and she had to face cruelty both mental and physical from the respondent-husband and his relations. It is also the allegation of the petitioner that her stay in the matrimonial home became absolutely miserable and disgraceful and ultimately on 1st September, 1986, the petitioner was left at the house of her father with only the wearing apparel on her person and since then, the respondent did not care either to take any information of the petitioner or to give any money for her maintenance at any point of time.
2. On the aforesaid grounds, the petitioner has filed the matrimonial suit for dissolution of the marriage between the parties by a decree of divorce.
3. The respondent/husband contested the proceeding by filing a written statement, denying the material allegations levelled against him by the petitioner /wife and alleging further that the petitioner /wife was in the hands of designing person who used to distaste her to request the respondent to leave his paternal home and come away to the house of his father-in-law to live as a "Ghar Jamai". It is further allegation that the respondent was further requested to sell away his share in the paternal properties and keep the amount in some bank in fixed deposit. The respondent was also asked to sever all his connections with his relations. It is the further allegation that the petitioner /wife left her matrimonial home on 25th September, 1986 without informing the respondent, who was also ignorant about the fact of her leaving the Matrimonial home. The petitioner /wife left the matrimonial home for reasons best known to herself. It is also the allegation of the respondent, that he saw her from time to time and also provided her with maintenance but the petitioner flatly refused to restore the matrimonial relationship and to come and live with the respondent.
4. The learned court below tried the suit by raising certain issues including Issue No. 2 touching the question whether the petitioner was treated with cruelty by the respondent/husband and Issue No. 3 touching the question whether the petitioner was deserted by the respondent/ husband or not. The trial court by the judgement impugned held that the petitioner/wife failed to prove that the respondent treated her with cruelty and deserted her. On these findings such court dismissed the Matrimonial Suit but at the same time erroneously mentioned that such court dismissed an application u/s 12 of the Hindu Marriage Act and not u/s 13 of such Act.
5. Being aggrieved by such judgement and order, the petitioner/wife has come up before this court challenging such judgement and order by the learned Additional District Judge, Alipore. The point for our consideration here is whether the judgement and decree of dismissal passed by the court below should be set aside or upheld.
6. As the very initial stage of his submission, the learned Advocate for the appellant has wanted to challenge the judgement impugned only on the ground of desertion leaving aside the ground of cruelty. So as the matter stands now, the short point involved in this appeal is whether the appellant/wife is entitled to get a decree of divorce on the ground of desertion as contemplated u/s 13(1)(1b) of the Hindu Marriage Act, 1957.
7. Before we enter into the specific arguments canvassed by the learned Counsels for the parties, the specific provision of the Hindu Marriage Act which involved here should be noted for appreciating such arguments, it reads as follows: Section 13, Divorce-(l) any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife be dissolved by a decree of divorce on the ground that the other party, (i) ... (ib) ... Has deserted the petitioner for a continuous period of not less than 2 years immediately preceding the presentation of the petitioner; ... Explanation:
In this sub-section, the expression of desertion means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
8. The learned Advocate for the appellant has drawn our attention to the undisputed fact of the case that since September, 1986, the parties to the marriage have been living separately and there was no resumption of cohabitation within this long period. The learned Advocate for the appellant has further submitted pointing out to the evidence on record that the respondent/husband took the petitioner/wife from her matrimonial home and reached her to her father''s house and thereafter the said husband never cared to take any information of the wife or to give her any maintenance or to write a letter to her or to make any effort to take her back. It is the specific submission of the learned Advocate that here the situation was such that the wife was forced to leave her matrimonial home and the husband took her to her father''s place and in the facts and circumstances of the case, it can be said that the husband is guilty of constructive desertion. In this respect, the learned Advocate has relied much on a reported case of the Supreme Court (AIR 57 SC 176, Bipin Ch. Jaisinghbhai Shah........... Appellant vs. Prabhavati........... Respondent). That case was under Bombay Hindu Divorce Act. Section 3(I) of the Act provided for divorce and a husband or wife might sue on any of the grounds related there and one of the grounds for divorce was desertion for a continuous period of 4 years. The word ''desertion'' was defined in Section 2b of the said Act in the following terms. ''Desert'' means to desert without reasonable cause and without the consent or against the will of the spouse". In paragraph 15 of the reported judgement, the Apex Court observed as follows : "If one spouse by his words and conduct compel the other spouse to leave the marital home, the former would be guilty of desertion, though it is the latter who has physically separated from the other and has been made to leave the marital home". In such reported case, the Apex Court with approval quoted observation of Lord Macmillan in his speech in the House of Lords in the case of Pratt vs. Pratt, 1939 AC 417 at Page 420(G) which is as follows:
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 deserting spouse must be shown to have persisted in the intention to desert throughout the whole period. In fulfilling its duty or determining whether on the evidence a case of desertion without cause has been proved the court ought not, in my opinion, to leave out of account the attitude of mind of the petitioner.
9. Our attention has also been drawn by the learned Advocate to the statement of Law in Paras pp. 182 at 189 of reported decisions of Halsbury''s Laws of England (3rd Edn.), Vol-12 which the apex court approvingly quoted in the aforesaid Judgement and the relevant portions runs as follows:
The burden is on the petitioner to show that desertion without cause subsisted throughout the statutory period. The deserting spouse must be shown to have persisted in the intention to desert throughout the whole of the three years period. It has been said that a petitioner should be able honestly to say that he or she was all along willing to fulfil the duties of marriage, and that the desertion was against his or her will, and continued throughout the statutory period without his or her consent; but in practice it is accepted that once desertions has been started by the fault of the deserting spouse, it is not longer necessary for the deserted spouse to show that during the three years proceeding the petition he or she actually wanted the other spouse to come back, for the intention to desert his presumtion to continue. That presumption may, however, be rebutted.
10. In course of his argument, the learned Advocate for the appellant has drawn the attention to the case made out in the petition on the point of desertion we find that it is the specific case of the petitioner that after her marriage with the respondent according to Hindu rites on 5.5.85 she was taken to her matrimonial home at 12/2 Thakur Das Palit Lane where the parties to the suit lived as husband-wife. Ultimately on the petitioner was left at the house of her father with only the wearing apparel on her person and since then the respondent did not care either to take any information of the petitioner or to give any money for her maintenance at any point of time. Learned Advocate for the appellant has drawn our attention to the specific evidence adduced by PW., the petitioner regarding the circumstances under which she was taken away from her matrimonial home by the respondent. He has drawn our attention to the evidence of P.W. 1 wherein the petitioner has stated that on 13.8.86 there was a quarrel and she did not take meal on that day. Her husband was aware of that incident. She was not given any meal on the following day. Her husband came at 4 p.m. and asked her if she had taken any meal and thereafter he took her to a Hotel wherein she and her husband took meal and this happened on 1.9.86. Thereafter the husband took her to father''s house and left her there. Since then her husband did not take any information of her. According to the submission of the learned Advocate for the appellant the aforesaid unchallenged oral testimony of P.W. 1 clearly goes to show that the petitioner was not guilty of deserting her husband. On the other hand, he was taken away from her matrimonial home by her husband who took her to the house of her father and left her there and thereafter never cared to have connection with her. In this way, it is submitted that the factum of separation between the parties is an admitted position. Regarding animus deserendi that is to say the intention to bring cohabitation permanently to an end, it has been pointed out that from the entire facts and circumstances it is apparent that when the parties fail to resume cohabitation during long 8 years up to the trial of the Matrimonial Suit, the evident intention was to bring cohabitation permanently to an end.
11. Learned Advocate for the respondent/husband in his reply has submitted that it was the wife/petitioner who left the matrimonial home without any cause when the respondent/husband refused to live as a ''Gar Jamai'' (son-in-law) who lives permanently in the house of his father- in-law) after severing connection with his relations. The petitioner cannot be granted a decree of divorce on the ground of desertion as in the facts and circumstances of the case, it was the petitioner who deserted the respondent/husband without any cause. His further submission is that there is no allegation of desertion of a permanent nature. He has also submitted that the suit was filed u/s 12 of the Hindu Marriage Act so the ground of desertion etc. cannot be considered. Learned Counsel for the respondent has also pointed out that the learned trial judge has rightly pointed out in his judgement that the evidence of P.W.1, the petitioner P.W.2 father of the petitioner clearly revealed that the petitioner or his father did not make any attempt either to return to her matrimonial home or to send her back there. So the allegation of desertion has not been established here, therefore, the appeal has failed.
12. Before we enter into the merits of the case, we must like to point out the preliminary objection raised by the learned Advocate for the respondent here. It is the submission that the petition was filed u/s 12 of the Hindu Marriage Act and the learned Judge also treated the proceeding as one u/s 12 of such Act and since Section 12 of the Hindu Marriage Act dealt with the question of voidable marriages and not with the question of dissolution of marriage by a decree of divorce, the suit should be remanded to the trial court for giving an opportunity to the petitioner/wife to suitably amend the application in question and thereafter the learned court below should be asked to write out a judgement afresh after taking into consideration the evidence on record and such further evidence as the parties want to adduce in view of the amendment. But we find such argument totally misconceived, in the facts and circumstances of the case. No doubt, the petitioner described her application as one u/s 12 of the Hindu Marriage Act just below the cause title of the suit. But from the prayer portion it is evident that through the application, the petitioner wanted that her marriage with the respondent should be dissolved by a decree of divorce. So as per the prayer, the petition was one u/s 13(1) and not u/s 12 of the Hindu Marriage Act. The learned Judge who disposed of the suit in his judgement treated the suit as one for divorce on the ground of cruelty and desertion. He raised issues accordingly on the pleadings of the parties. He answered the issues on the basis of the evidence on record and recorded his ultimate findings that the petitioner/wife was unable to establish that she was treated with cruelty after her marriage with the respondent and that she was deserted by her husband/respondent of the case. But in spite of that in the ordering portion, the court below described the matrimonial suit as an application u/s 12 of the Hindu Marriage Act. This is no doubt a gross error on the part of a Senior Judicial Officer like Additional District Judge who ought to have considered that u/s 12 of the Hindu Marriage Act there was no provision for dissolution of Marriage Act by a decree of divorce. But fortunately that error on the part of the trial judge cannot go to the root of the case because the trial court all through its judgement considered the matter as a proceeding arising out of an application u/s 13 of the Hindu Marriage Act and not u/s 12 of the same Act.
13. Now, the question is whether the plaintiff/appellant can get a decree of divorce on the ground of desertion, in the facts and circumstances of the case. In Bipin Ch. Jai Bhai Saha case (supra) and also in a subsequent case reported in
14. In this way, it is established on the record that the parties have been living separately since September, 1986. There is positive evidence from the side of the petitioner/wife that she was taken away from the matrimonial home by the husband. So the question is though the factum of separation is established whether there is intention on the part of the respondent/husband to bring cohabitation permanently to an end. On this point, the learned Advocate for the respondent has tried strenuously to impress us that the evidence on record does not support such circumstances. Here our attention has been drawn to the evidence of P.W. 2 Shyam Sundar Adhya, the father of the petitioner/wife who claimed that he made efforts so that his son-in-law took back the petitioner to her matrimonial home on 3/4 occasions and for that purpose had gone to his house. Our attention has been drawn to the specific statement made by such witness in the cross-examination that he took his daughter to her matrimonial home and her entry there was refused. It is submitted by the learned Advocate that the way the witness deposed, goes to show that he has got no regard for the truth and he mechanically deposed falsely by claiming that the petitioner also accompanied him to her matrimonial home, which statement was not even supported by the petitioner in her evidence. By going through the evidence of P.W. 2, we are of the opinion, that this witness has got the habit of exaggeration but it is well established that for the purpose of accepting the evidence of any witness he is not required to be a truthful witness for the every word he utters. His evidence should be acceptable in the main leaving some exaggeration or embellishment, aside.
15. Here from the evidence of P.W. 2 we can at least come to the conclusion that this witness corroborates the evidence of his daughter P.W. 1 while stated in his evidence that on 1st September, 1986 his daughter finally came back to his house accompanied by her husband and at that time she had only wearing apparel on her person. This husband/respondent went back immediately after reaching his wife at the house of P.W.2. So from the evidence on record, the factum of separation between the parties and the intention to bring cohabitation permanently to an end have been clearly established here one significant fact should be pointed out. The petitioner/wife appellant both in her petition for divorce and also in her evidence stated that she came back to her father''s house and at that time she had only wearing apparel on her person. This at once goes to show that the petitioner had no intention to desert the husband or to bring cohabitation permanently to an end (animus desarendi). The husband had that intention which would be evident from the subsequent conduct and he did not give any hint to the petitioner that he was going to keep the petitioner to her father''s house at least for some time. The fact that the husband/opposite party had the intention to bring the cohabitation permanently to an end would be evident from the admitted circumstances that after reaching the petitioner to her father''s house he did not ever try to keep any contact with his wife. He did not write any letter. He did not give any maintenance to her. In fact, he did not keep any information about the well being or otherwise of the petitioner/wife. There is no evidence adduced from the side of the opposite party/husband, clearly indicating that the opposite party/husband ever tried to bring her back to the matrimonial home. The husband in his evidence did not claim that he sent anybody on his behalf to get her back. So as the matter stands now, the wife was taken back to her father''s house by the husband. There is no claim by the husband that he ever tried to get her back in the matrimonial home. In the written statement, the husband wanted to make out a case alleging that since he was not prepared to live in his father-in-law is a ''Ghar Jamai'', severing all links with his family and disposing of his share of property and keeping money in the fixed deposit in bank, the wife left the matrimonial home and started living separately in his father''s house and in this way a feeble attempt was made to show that it was the wife who deserted the husband and not the vice versa. But in his evidence, the husband has stated in the cross-examination that he does not know the reason behind his wife''s desertion and thereafter most casually has alleged that the reasons perhaps was his refusal to live in the house of his father-in-law as ''Ghar Jamai''. In our considered opinion, the statement to this effect fails to give any clear impression that the reasons assigned by the respondent/husband in the written statement was behind the wife''s leaving the matrimonial home. On the other hand, the manner in which the husband has deposed about the fact will clearly go to indicate that there is no truth in the allegation that the petitioner/wife deserted the husband because the husband refused to be a ''Ghar Jamai'' in the house of his father-in-law. If such reason goes, there is no other cogent reason for the wife to leave her matrimonial home. Why would a woman coming from a middle class family leave her matrimonial home unless she was forcibly taken away from such matrimonial home or she was compelled to leave that place?
16. In Luxman''s case (supra), it was held, once desertion, as defined earlier, was established there was no obligation on the deserted husband (taking the case where he is the deserted spouse) to appeal to the spouse who deserted him, to change her mind and in the facts and circumstances that the deserted husband made no efforts to take steps to effect reconciliation with the wife did not debar from obtaining the relief or judicial separation for once desertion was proved the deserting spouse, so long as she indicated no serious intention to effect the reconciliation and return to the matrimonial home, was presumed in desertion.
17. Applying such principle in the present case, we find that in the facts and circumstances it is established that the wife was taken away from her matrimonial home by the respondent/husband and therefore here the husband deserted the wife and once he deserted the wife and that its established, there is no obligation on the petitioner/wife to appeal to her husband to take her back to the matrimonial home. It is well established that the deserting spouse, namely, the husband never cared to write any letter, or give her any maintenance or to bring her back to the matrimonial home.
18. The very existence of animus deserendi may be questioned here, but in the aforesaid case it has been observed by the Apex court that the 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. As in this case wherein the husband brought his wife to her father''s house only with the wearing apparel on her person and at this stage it is not clear whether the husband had animus deserendi that is to say the intention to bring cohabitation permanently to and end. But subsequently it transpires from the established facts and circumstances that the husband did not want to have any relationship with the wife. In the same case, the Apex Court has further held that if the wife was forcibly turned out of her marital home by the husband, the husband would have been guilty of constructive desertion, because test was not who left the matrimonial home first. This observation is also relevant here.
19. To conclude the entire discussion, we must once again repeat that there are two elements of desertion; factum and animus. Physically separation for a long period is undisputed. The question here centres round touching animus deserendi that is to say the intention to bring cohabitation permanently to an end. It is well established that to seek an answer to that question, the court can take into consideration the entire facts and circumstances. Desertion may be inferred from certain facts in one case which in another would not justify the same inference. In the instant case, the parties started living separately shortly after their marriage. It is an admitted position that the husband took the wife to her father''s place and left her there and never cared to take her back or to keep any touch with her. The further admitted position is that the husband used to live in a joint family with his elder brother his wife and daughter and after the marriage it has been alleged from the side of the petitioner which has not been rebutted properly from the side of the respondent that there were instances of quarrel between two sisters-in-law and the wife/petitioner some time had to pass her days without taking food. In that background the husband took the petitioner back to her father''s house and the petitioner was never taken back to her matrimonial home. Considering these facts we find that the separation between the parties here is attributable to the conduct of the respondent. Therefore, there exists animus deserendi in the facts and circumstances of the case.
20. In this background, we find that the learned court below has improperly come to a conclusion that the petitioner/wife has failed to establish her case for divorce on the ground of desertion. On consideration of the total evidence and the relevant facts and circumstances and discussed above we hold that the petitioner/appellant is entitled to get a decree of divorce u/s 13(1)(ib) of the Hindu Marriage Act, 1955. In the result, the appeal must succeed. The appeal is allowed, the judgement and the decree of dismissal passed by court below is set aside. The marriage between the parties be dissolved by a decree of divorce.
Y.R. Meena, J.
I agree.
