(1) This first appeal from order is directed against the judgment of Subordinate Judge 1st Class, Delhi, dated 26th August, 1965, dismissing the petition by the husband for a decree of judicial separation.
(2) Kirpal Singh (hereafter referred to as the husband) was married to Shrimati Harbans Kaur (hereafter referred to as the wife) on 9th September, 1952, at Muzaffarnagar. He filed this petition u/s 10 of the Hindu Marriage Act, 1955, against the wife for a decree of judicial separation on the ground of desertion. It was alleged by the husband that after the marriage the parties resides together in Delhi but no child was born out of the wedlock, that the wife stayed with the husband for 3 or 4 months and then deserted him without any reasonable cause, continuously for 3-1/2 years; that thereafter as a result of persuasion by some common friends and relations, the wife came to reside with the husband in the year 1957 but again in June 1959 left her marital abode without his consent and without any reasonable cause, that all efforts on the part of the husband to bring back the wife failed; that in December 1959 the wife came to the husband''s residence in connection with Akhand Path, stayed there for 2 or 3 days and left thereafter with a promise to come back after tendering her resignation from the school where she had been employed for quite some time; and that in spite of the promise she did not return.
The wife in her written statement admitted the marriage and that she lived with the husband for some time but denied any desertion on her part. She stated in the written statement that she was prepared to live with the husband. Her defense further was that the husband treated her with cruelty; that she was administered poison once by the husband and that the husband had once locked her up in a room where she was freed by the intervention of the police. The wife also denied that the husband or his father or any relative ever made any effort or request to her to return to the husband''s house. The case of the wife was that the husband in his design to get rid of her wanted her to acknowledge in writing that she did not like to stay with him which she was not prepared to do.
(3) On the pleadings of the parties, the following two issues were framed:
1. Has the respondent left the society of the petitioner without reasonable cause for a continuous period of two years immediately preceding the presentation of petition?
2. Relief.
The learned trial Judge, however ... of hearing of the arguments reframed ... No.1, with the consent of the parties. ... reframed issue reads as under:
"Whether the respondent has deserted the petitioner for a continuous period of more than 2 years immediately preceding the presentation of petition?"
The learned Trial judge decided -
"1. So, I have got no hesitation in coming to the conclusion that although the wife has been living separately for the last more than 2 years, yet she had not deserted him as she did not leave him with any intention of repudiating the obligation of marriage rather she was forced by the petitioner to leave her matrimonial home", and
"2. So, the respondent has not been able to prove that she had been treated with cruelty as alleged and she had no sufficient cause for her withdrawal from the society of the petitioner".
In the end the trial Court came to the conclusion that the petitioner, failed to prove that the wife had deserted him, the onus for which was on the husband and as heavy as in a criminal case.
(4) The learned counsel for the appellant says that on evidence it has been conclusively proved that:
1. The wife left the martial abode and had been living separately for than the statutory period;
2. She did so without the husband''s consent and without just cause; and
3. She deserted the husband with the intention to bring cohabitation permanently to an end.
The learned Counsel has drawn my attention to two reports. Exhibits P.W. 6/1 and R/1. The first document is a report by a police officer as a result of some enquiry into the differences between the parties which, it is alleged, was made after the police officer has taken statements of the parties. Those statements, however, have not been placed on record. The report places the entire blame on the husband and points out that since the husband is interested in marrying some other he wants the wife to commit in writing that she has no objection to the same. It is further recited in the said report that no cognizable offence is made out and the wife , ... feeling disgusted with the atmosphere in her house, wants to go back to her parent''s house in Muzaffarnagar where she is serving in a School.
(5) I may straightway point out that much value cannot be attached to ... particularly when the statements ... on which it is based,, have ... brought on the record,.
(6) The other document, Exhibit ... a report by the wife to the police in ... is inter alias stated that she is being ill treated by her husband not being permitted to go back to Muzaffarnagar. It is further recited in the said report that:
(1) the real object of the husband maltreating the wife is to coerce the latter into writing that she had no objection to the husband marrying again which she is not willing to do;
(2) a few days before the report her parents-in-law wrote a letter to her calling her back to the husband''s house and she responded to the same and returned. She is, however, wanting to go back to Muzaffarnagar which the husband is not permitting, and
(3) the husband is threatening that he will take the matter to the police and thereby create difficulties for her.
It is significant that there is no firm allegation in this report that any cruelty in the legal sense was being inflicted on her by the husband. Even the written-statement is silent about the husband''s desire for a second marriage. In paragraph 10 of the written statement, the only allegation is:
"They treated her very cruelly and demanded that respondent should give in writing that she did not like to say with them but respondent would not agree to it as she wanted to live with petitioner:.
Again in additional pleas it is said:
"Since the day of marriage they have been trying to get rid of respondent in one way or the other They treated her mercilessly and cruelly. They would not give her enough to eat. They will not allow petitioner to talk to her. They have been torturing her. Once they administered poison to respondent but as she had to live, she did not die".
Besides the two concrete instances of administration of poison and the wife''s confinement to a room, the written-statement contains only vague and general allegations of cruelly and about her being turned out of the house. I have already mentioned about significant omission in document Exhibit R/1 and the learned counsel for the Appellant has seriously pressed that in aid .
(7) The evidence on behalf of the husband consists inter alias of his own statement and the statements of Kartar Singh his father (P.W. 7) , Amreek Singh (P.W. 3) and Amar Singh (P.W. 4). The husband spoke bout his various efforts to get the wife back. He further stated that when the wife came on the occasion of Bhog ceremony, she promised to return on 5-1-1960 after resigning her job but she failed to return in spite of various letters written to her. None of the letters has, however, been produced nor was the wife asked to produce any. The husband also denied any cruelty towards the wife. Amreek Singh and Amar Singh (P.W. 3 and 4 respectively) deposed about the wife leaving on 1-1-1960 for Muzaffarnagar with a promise to come back. The father of the husband also spoke about good relations between the husband and the wife during her stay with him.
(8) The evidence on behalf of the wife consists of inter alias her own statement and the statement of Harnam Singh (R.W. 2). In her statement she said that -
1. Towards the end of the year 1953 the husband treated her badly and wanted her to go to her parents and learn sewing.
2. In 1954 she wrote to the husband that she would be going to Delhi but when she reached there she found that he had not gone to receive her, and
3. She was willing to stay with the husband. She also spoke generally about the husband beating her and swore to the two instances of cruelty mentioned in the written statement, namely, administration of poison and confinement to a room.
(9) The learned counsel for the appellant has placed a great reliance on a passage in her statement to the effect that she had the charge of "Asha Company" and Therefore, she wanted to go to Muzaffarnagar but her husband was not permitting her to do so. The trial Court has held that the allegation regarding administration of poison was a mere concoction. It has further held that there was no truth in the wife''s allegation regarding her confinement in a room and consequently the wife had failed to prove that she had been treated with cruelty, particularly because she had not alleged any other incident of cruelty. The above finds of the trial Court are based on proper assessment of the evidence and I see no cause to differ from the same. It is in the light of these circumstances that this appeal has to be decided.
(10) On behalf of the wife strong reliance has been placed on a decision of their Lordships of the Supreme Court in
1. Desertion means the intentional permanent forsaking 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.
2. If a spouse abandons 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 exist: (i) the factum of separation and (ii) the intention to bring cohabitation permanently to an end. Similarly, two elements are essential so far as the deserted spouse is concerned: (i) the absence of consent and (ii) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid.
3. Desertion is a matter of information to be drawn from the facts and of each case and if, in fact a separation, the essential whether that act could be animus deserendi.
4. The burden of proving desertion - the "factum" as well as the "animus deserendi" - is on the petitioner, and he or she has to establish beyond reasonable doubt, to the satisfaction of the Court, that 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.
(11) Desertion as defined by lexicographers is the act of forsaking or abandoning or the act of quitting without leave and with an intention not to return. There must be an intention on the part of the deserting spouse never to return to the matrimonial home and such desertion must be without the consent on the part of the person deserted. There must also exist an intention to abandon and withdraw from cohabitation. In short, to constitute desertion there must be cessation of cohabitation without cause Therefore and consent thereto but with an intent to abandon which is willfully persisted in for the space of the statutory period. A more severance of the relation is not sufficient, since there may be a separation without desertion and desertion without separation. Continued separation of husband and wife which may be consistent under the proofs with no intention to willfully desert, is not a desertion within the meaning of the statute.
In legal contemplation, a husband may be said to be living with his wife, though driven by stress of circumstances and pecuniary difficulties to absent himself from home in an effort to make better provision for his family, and he ceases to have with his wife only when, an intention never to return, he deserts or abandons her. Similarly, if a husband by his extreme cruelty to his wife compels her, for her own safety and protection to seek a house elsewhere than his roof, she cannot be said thereby to have deserted him. At the same time, mere austerity of manners or even occasional sallies of passion may not justify the other spouse to leave the marital abode for the parties entering into marital relationship must be prepared to subject themselves to the ordinary wear and tear of such life and they are expected to pave the road to accord more than persons in other relations of life. Whereas it is true that even if the wife, where she is the deserting spouse, does not prove just cause for her living apart, the petitioner-husband was without just cause, but it is equally true that the circumstances placed on record may lead the Court to such a satisfaction.
What are the circumstances here? The ... neither in the pleadings nor in the police .... above gave any concrete .... except the two which have ... the trial Court with which .... concurred. One has, Therefore, ... the footing that the husband .... of any cruelty towards the wife. It must, Therefore be inferred that she left the husband''s roof without any reasonable cause. It is also abundantly proved on the record that her leaving was without the consent of the husband. In the absence of any reliable evidence of cruelty by the husband the inference as to absence of consent becomes more confirmed from the evidence of Amreek Singh, Amar Singh and the Appellant.
The only problem then remains to be answered is whether there was any intention on the part of the wife to bring cohabitation permanently to an end. The entire course of her conduct shows that she was not serious when she every time made an offer to return to the husband''s roof. In the absence of proof of cruelty, I am inclined to believe the evidence of the Appellant and his witnesses that efforts were made to bring the wife back but the same proved abortive. Her absence from the house for such a long time without any just cause leads me to believe on the basis of the evidence, that she had no intention of reverting to the husband''s roof and resume cohabitation. In other words, her intention was to bring cohabitation permanently to an end. In these circumstances, there is no escape from the conclusion that the husband was entitled to the grant of his application under S. 10 of the Hindu Marriage Act, 1955 for a decree of judicial separation.
(12) In the result, I allow the appeal, set aside the order of the trial Court and grant to the appellant a decree for judicial separation. Having regard, however, to the circumstances of the case, the parties will bear their own costs.
(13) Appeal allowed.
