Full Judgment Text
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PETITIONER:
BIPIN CHANDER JAISINGHBHAI SHAH
Vs.
RESPONDENT:
PRABHAWATI.
DATE OF JUDGMENT:
19/10/1956
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
JAGANNADHADAS, B.
AIYYAR, T.L. VENKATARAMA
CITATION:
1957 AIR 176 1956 SCR 838
ACT:
Husband and Wife-Divorce-Desertion-Ingredients of Desertion-
Intention-Animus Deserendi-Statutory period of separation
-Burden of proof-Bombay Hindu Divorce Act, 1947 (Bom. XXII
of 1947), s. 3(1)(d).
HEADNOTE:
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) bad 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 pretext of the
marriage of her cousin which was to take place in June. On
July 15, 1947, the appellant sent a notice to the respondent
through his 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 May 24, 1947, without reasonable cause
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 his return from
England had made her life unbearable and compelled her to
leave her marital home against her wishes, ’was 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 his relations to bring
about reconciliation between the parties but they failed
owing 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 lay 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 to the
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attitude of the appellant, there was no proof that she
deserted him, much less that she bad harbored that animus
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
839
(animus deserendi); and as regards the deserted spouse the
elements are (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.
Desertion is a matter of inference to be drawn from the
facts and circumstances of each case and those facts have to
be viewed as to the purpose which is revealed by those facts
or by conduct and expression of intention, both anterior and
subsequent to the actual act of separation.
In a 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
years.
Thomas v. Thomas ([1924] P. 194), Bowron v. Bowron ([1925]
P. 187), Pratt v. Pratt ([1939] A.C. 417) and Lang v. Lang
([1965] A.C. 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.
JUDGMENT:
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, 1952 of Bombay
High Court in its Ordinary Original Civil Jurisdiction in
Suit No. 1177 of 1951.
M. C. Setalvad, Attorney-General for India, Purshottam
Tricumdas, T. Godiwala, J. B. Dadachanji, Rameshwar Nath and
S. N. Andley, for the appellant.
C. K. Daphtary, Solicitor-General of India and Sardar
Bahadur, for the respondent.
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 Judicature 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.
840
The facts and circumstances of this case may be stated as
follows: The appellant, who was the plaintiff, and the
respondent were married at Patan on April 20, 1942,
according to Hindu rites of the Jain Community. The
families of both the parties belong to Patan, which is a
town in Gujarat, about a night’s rail journey from Bombay.
They lived in Bombay 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 Patan. There is an issue of the marriage, a son named
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Kirit, born on September 10, 1945. The defendant’s parents
lived mostly at Jaigaon in the East Khandesh district in
Bombay. The parties appear to have lived happily in Bombay
until a third party named Mahendra, 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 became 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
plaintiff’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 translated in
English, the original being in Gujerati except a few words
written in faulty English. This letter is dated
April,1947, written from the plaintiff’s house at Patan,
where the defendant bad 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
841
the plaintiff’s narrative of the events as alleged in the
plaint and in his evidence, the plaintiff returned to Bombay
from abroadon May 2O, 1947. To receive him back from his
foreign journey the whole family’ including the defendant
was there in Bombay. According to the plaintiff, he found
that on the first 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 incident 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 plaintiff’s father handed over the letter
aforesaid to the plaintiff, who recognised it as being in
the familiar handwriting of his wife. He decided to tackle
his wife with reference to the letter. He handed it to a
photographer 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
884
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refused the offer. She left Bombay apparently in the
plaintiff’s absence for Jalgaon by the afternoon train. when
the plaintiff came back home from his office, he "discovered
that she had taken away everything with 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 him, nor did she 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 and 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 Patan. The telegram is
worded as follows:-
"Must not send Prabha. Letter posted.
Wishing happy new year".
The telegram stated that a letter bad been posted. The
defendant denied that any such letter bad been received by
her or by her father. Hence the original, if any, is not on
the record. But the plaintiff produced what he alleged to
be a carbon copy of that letter which purports to have been
written on November 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 received
information from my Mami (mother) that
843
Prabha is going to come to Bombay in 3 or 4 days. I am
surprised to hear this news; Ever since she has gone to
Jalgaon, there has been not a single letter from her to this
day. Not only that, but, although you know everything,
neither you nor any one on your behalf has come to see me in
this connection. What has made Prabha thus inclined to come
all of a sudden!
After her behaviour while going to Jalgaon for: the
marriage, (and after), her letter 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 her
return, I was surprised.
I have not the slightest objection to the return of Prabha,
but if she gives such 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 repenting and wants sincerely to come, please make
her write a reply to this letter. On getting a letter from
her, I shall personally 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
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give up her obstinacy, I am not responsible and (then) do
not blame me.
Well, that is all for the present. Kirit must be bale 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 be 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
plaintiffs mother about sending the defendant I to Bombay
and to the fact that the plaintiff bad sent a telegram on
November 13, and ends with the expression of opinion by the
plaintiff’s father
844
that it was "absolutely necessary" that the plaintiff’s
consent should be obtained before sending the defendant to
Bombay. This letter also remained unanswered. According to
the plaintiff, nothing happened until May, 1948, when he
went to Patan and there met the defendant and told her "that
if she repented 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 result of
pressure from her father and the community, she had-been
thinking of coming to live with the plaintiff) 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 Patan 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-May, 1949. At that interview also the
defendant turned down the plaintiff’s request that at least
in the interests of the child she should come back to him.
According to the plaintiff, since May 24, 1947, when the
defendant left his home in Bombay of her own accord, she bad
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 bad 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 his marriage with the defendant and for the
custody of the minor child.
The suit was contested by the defendant by a written
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
845
24, 1.947. She denied any intimacy between herself and
Mahendra or that she was confronted by the plaintiff with a
photostat copy of the letter., Ex. E, or that she had
confessed any such intimacy to the plaintiff. She admitted
having received the Attorney’s letter, Ex. A, and also that
she did not reply to that letter. She adduced her
father’s advice as 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 plaintiff
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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
defendant and her son, Kirit, 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 is
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 wailfully 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 between the
parties, namely,-
"Whether the defendant deserted the plaintiff for a
continuous period of over four years prior to the 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 along ready and willing to go
back to her marital home and that in spite of repeated
efforts on her part through her relations the plaintiff had
been persistently refusing to take her back.
110
846
The learned trial Judge answered the only issue in the case
in the affirmative and granted a decree for divorce in
favour of the plaintiff, but made DO order as to the costs
of the suit. He held that the letter, Ex. E "reads like a
love letter written by a girl to her paramour. The
reference to both of them having been anxious about
something and there being now no need to be anxious any more
can only be to a 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 testimony 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 bonafide 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 reference to the prayer
in the plaint that the custody of the child should be given
to the father, perhaps because that prayer was not pressed.
The defendant preferred an appeal under the Letters Patent
which was heard by a. Division Bench consisting of Chagla
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C.J. and Bhagwati J. The Appellate Bench, allowed the
appeal, set aside the decision of the trial Judge and
dismissed the suit with costs. It held that the defendant
was not guilty of
847
desertion, that the letter of July 15, 1947, clearly
established that it was the ’plaintiff who had deserted the
defendant. Alternatively, the Appellate Court held that
even assuming that the defendant was in desertion as a
result of what had happened on May 24, and subsequently, the
letter aforesaid bad the effect of putting an end to that
desertion. In its judgment the letter, Ex. E, did not
justify the plaintiff having any reasonable suspicions about
his wife’s guilt and 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 Justice 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 appearing on
behalf of the appellant and the learned Solicitor-General
appearing on behalf of the respondent have placed all
relevant considerations of fact and law before us, and we
are beholden to them for the great assistance they rendered
to us in deciding this difficult 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
husband’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 of observations
848
on the history of the law on the subject and the well
established general principles on which such cases are
determined. The suit giving rise to this appeal is based on
section 3(1) (d) of the Bombay Hindu Divorce Act’, XXII of
1947, (which hereinafter will 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 certain
circumstances". Before the enactment, dissolution 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 sacrament, that is to say, a holy alliance for
the performance of religious duties. According to the
Shastras, marriage amongst the Hindus was the last of the
ten sacraments enjoined by the Hindu religion for
purification. Hence according to strict Hindu law as given
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by the Samhitas and as developed by the commentators, a
Hindu marriage could not be dissolved on any-ground
whatsoever, even on account of degradation 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 concubine" 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 concerned with the provisions of s. 3(1)(d),
which are in these terms:-
3. (1) A husband or wife may sue for divorce on
849
any of the following grounds, namely:-
............................................
(d) that the defendant has deserted the plaintiff for a
continuous period of four years".
"Desertion" has been defined in section 2(b) in these
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 and 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". "Husband" 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 upwards 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 deserting spouse of
bringing cohabitation permanently to on end without
reasonable cause and without the
850
consent of the other spouse; but the physical act of
departure by one spouse does not necessarily make that
spouse the deserting party".
The legal position has been admirably summarised in paras.
453 and 454 at pp. 241 to 243 of Halsbury’s Laws of England
(3rd Edn.) Vol. 12, in the following words:-
"In its essence 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
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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 enforce 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 consummated.
The person who actually withdraws from cohabitation is not
necessarily the 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 presentation 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 essential
elements which differentiates desertion from
851
wilful separation. If a spouse abandon 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., namely, (1) the factum of
separation, and (2) the intention to bring cohabitation
permanently to an end (animus deserendi ). Similarly two
elements are essential so far as the deserted spouse is con-
cerned: (1) the absence of consent, and (2) absence of
conduct giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid.
The petitioner for divorce bears the burden of proving those
elements in the two spouses respectively. Here a difference
between the English law and the law as enacted by the Bombay
Legislature may be pointed out. Whereas under the English
law those essential conditions must continue throughout the
course of the three years immediately preceding the
institution of the suit for divorce; under the Act, the
period is four years without specifying that it should
immediately precede the commencement of proceedings for
divorce. Whether the omission of the last clause has any
practical result need not detain us, as it does not call for
decision in the present case. Desertion is a matter of
inference to be drawn from the facts and circumstances of
each case. The inference may be drawn from certain facts
which may not in another case be capable of leading to the
same inference; that is to say, the facts have to be viewed
as to the purpose which is revealed by those acts or by
conduct and expression of intention, both anterior and
subsequent to the actual acts of separation. If, in fact,
there has been a separation, the essential question always
is whether that act could be attributable to an animus
deserendi. The offence of desertion commences when the fact
of separation and the animus deserendi co-exist. But it is
not necessary that they should commence at the same time.
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The de facto separation may have commenced without the
necessary animus or it may be that the separation
852
and the animus deserendi coincide in point of time; for
example, when the separating spouse abandons the marital
home with the intention, express or-implied, of bringing
cohabitation permanently to a close. The law in England has
prescribed a three year period and the Bombay Act prescribes
a period of four years as a continuous period during which
the two elements must subsist. Hence, if a deserting spouse
takes advantage of the locus poenitentiae thus provided by
law and decides to come back to the deserted spouse by a
bonafide offer of resuming the matrimonial some with all the
implications of marital life, before the statutory period is
out or even after the lapse of that period, unless
proceedings for divorce have been commenced,, desertion
comes to an end and if the deserted 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 connection the following observations of
Lord Goddard, C.J. in the case of Lawson v. Lawson(1) may be
referred to:-
"These cases are not cases in which corroboration is
required as a matter of law. It is required as a matter of
precaution...............
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 E.R. 341, 342.
853
there was an unreasonable refusal on the part of the husband
to take her back.
In this connection the plaintiff in the witness box deposed
to the incident of the night of May 20, 1947. He stated
that at night he found that his bed had been made in the
hall in which 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 long
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 plaintiff 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 made in 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
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testimony to that of the defendant on all matters on which
there was simply oath against oath, we would not go behind
that finding. This incident by itself is capable of an
innocent explanation 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-
854
mate rupture between the parties took place on May 21, 1947,
when in the morning the plaintiff’s father placed Mahendra’s
letter aforesaid in the plaintiff’s hands. The letter which
has rightly been pointed out in the courts below as the root
case of the trouble is in its relevant parts in these
terms:-
"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 thinking 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 be. 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 portrait shoots up before 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 bands
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 letter is not signed by the defendant and in place of
the signature the word "namaste" finds
855
place. The contents of the letter were put to the
defendant in cross-examination. At that time it was no more
a contested document, the defendant’s counsel having
admitted it during the cross-examination" of the plaintiff.
She stated that she had feelings for 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:-
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"It is not true that the reference here is to our having had
sexual intercourse and being afraid that I might remain
pregnant".
The sentence "I 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 some thing foolishly".
Pressed further about the meaning of the next sentence after
that, her answer was "I 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 bad no explanation to give
as to how I wrote such a letter". She also admitted that
she took good care to see that the. other members of the
family, meaning the mother-in-law and the sisters-in-law,
did not see her writing that letter and that she wanted that
the letter should remain a secret to them. Being further
pressed to explain 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 bad 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
856
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 hands
of any one, it might compromise me and Mahendra. Mahendra
would have known from my handwriting that this was my
letter. I had previously written one letter to him. That
letter also I had not signed. I had only said ’Namaste"’.
The tenor of the letter and the defendant’s explanation or
want of explanation in the witness box of those portions of
the letter 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 Mahendra which she was
interested to keep a secret from everybody. Even when given
the opportunity to explain, if she could, those portions of
the letter, she was not able to put any innocent 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 relating to her answers with
respect to the contents of the letter. The letter shows a
correspondence between her and Mahendra which was clearly
unworthy of a faithful wife and her pose of innocence by
characterising it as between a sister and a brother is
manifestly disingenuous. Her explanation, if any, is wholly
unacceptable. The plaintiff naturally got suspicious of his
wife and naturally taxed her with reference to the contents
of the letter. That she had a guilty mind in respect of the
letter is shown by the fact that she at first denied having
written any such letter to Mahendra, a denial in which she
persisted even in her answer to the plaint. The plaintiff’s
evidence that he showed her a photostatic copy of that
letter on May 23, 1947, and that she then admitted having
written that letter and that she bad 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 justified in observing further that’ the contents of the
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857
letter "are only capable of the interpretation that she had
misbehaved with Mahendra during the absence of the
plaintiff". If he meant by the word "misbehaved" that the
defendant had sexual intercourse with Mahendra, he may be
said to have jumped to the 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 insisting upon her
repentance and assurance of good conduct in future. But we
are not prepared to say that the contents of the letter are
capable of only that interpretation and no other. On 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 plaintiff for putting those questions to the defendant
in cross-examination. They observe in their judgment
(speaking through the Chief Justice) 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 apprehending 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
been 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
858
for divorce. But we do not agree with the appellate Court
that those questions to the defendant in cross-examination
were not justified. The plaintiff proposed to prove that
the discovery of the incriminating letter containing those
mysterious sentences was the occasion for the defendant to
make 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 bad 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 unloving, 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 reestablish herself in her husband’s
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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 belongings 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 explained 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
859
moral courage to face him. The question is whether her
leaving her marital home on the afternoon of May 24, 1947,
is only consistent with her having deserted, her husband, in
the sense that she had deliberately’ decided permanently to
forsake all relationship with 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 expressions of intention: see
Charter v. Charter(2). 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 Wilkinson v.
Wilkinson(3) that desertion is not a specific act, but a
course of conduct. As Corell Barnes J. said in Sickert v.
Sickert(4): ’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 bad 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 bad 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 riot who
(1) [1924] P. 194.
(3) 58 J. P. 415.
(2) 84 L T. 272.
(4) [1899] P. 278, 282,
860
left the matrimonial home first. (See Lang v. Lang(1)). 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. It should be noted that the wife did not
cross-petition for divorce or for any other relief. Hence
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it is no more necessary 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 Chat 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 fact; and circumstances 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
husband’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 pretext 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 Jalgaon everyone was surprised". As
pointed out above, the burden is on the plaintiff to prove
desertion 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 Macmillan in his speech
in the House of Lords in the case of Pratt v. Pratt(2 ) 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.C. 402. 417.
(2) [1939] A C. 417, 420.
861,
deserting spouse must be shown to have persisted in the
intention to desert throughout the whole period. In
fulfilling its duty of 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. 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 resumption 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 circumstances
indicated above. She, on the other hand, pleaded
constructive desertion by the husband. That case, as
already observed, she has failed to substantiate 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 proving 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
happenings 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 corroboration of his evidence in
court.
The next event of importance in this narrative is the
plaintiff’s solicitor’s letter of July 15, 1947, addressed
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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 performed 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 instead of getting
an invitation from the plaintiff to
862
come back to the marital home received the solicitor’s
letter aforesaid, which, to say the least, was not
calculated to bring the parties nearer. The letter is in
these terms:-
"Madam,
Under instructions from our client Bipin Chandra 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 January last
and returned by the end of May 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 satisfactory 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 desires the minor to be kept by
him and we are instructed 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 unpleasantness
when our client’s agent comes to receive 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
863
ing her marital duties. On the other hand, it alleges that
"You are residing with your father to avoid any satisfactory
explanation". The most important part of the letter is to
the effect that the plaintiff had "become entitled to obtain
a divorce" and that he "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 had positively come to the
determination 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 fulfill 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
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usefully quoted:
"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 year
period. It has been said that a petitioner should be able
honestly to say that he or she was all along willing to
fulfill the duties of the 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 desertion has been started by the
fault of the deserting spouse, it is no longer necessary for
the deserted spouse to show that during the three years
preceding the petition be 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 be was all along
willing to fulfill 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
864
place, even the plaintiff in that letter did not allege any
desertion and, secondly, he was not prepared to receive her
back to the matrimonial home. Realising his difficulty when
cross-examined as to the contents of that letter, he wished
the court to believe that at the time the letter was written
in his presence he was "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:-
"It 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 persuade 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 shows 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, be 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.
865
actually leaves the other, but it is not always or
necessarily the guilty party who leaves the matrimonial
home. In my opinion, the party who intends bringing the
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cohabitation to an end, and whose conduct in reality causes
its termination, commits the act of desertion: See also
Graves v. Graves(1); Pulford v. Pulford(2); Jackson v.
Jackson(2); 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 necessary 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
deserendi. Let us therefore examine the question whether
the defendant in this case, even if she had no such
intention at the time she left Bombay, subsequently decided
to put an end to the matrimonial tie. This is in consonance
with the latest pronouncement of the Judicial Committee of
the Privy Council in the case of Lang v. Lang(1) in an
appeal from the decision of the High Court of Australia, to
the following effect:-
"Both in England and in Australia, to establish desertion
two things must be proved: first, certain outward and
visible conduct the ’factum’ of desertion; secondly, the
’animus deserendi’ the intention underlying this conduct to
bring the matrimonial union to an end.
In ordinary desertion the factum is simple: it is the act of
the absconding party in leaving the matrimonial home. The
contest in such a case will be almost entirely as to the
’animus’. Was the intention
(1) 3 Sw. & Tr. 350.
(3) [1924] P. 19.
(2) [1923] P. 18.
(4) [1955] A.G. 402, 417.
866
of the party leaving the home to break it up for good, or
something short of, or different from that?"
In this connection the episode of November, 1947, when the
plaintiff’s mother came from Patan to Bombay is relevant.
It appears to be common ground now that the defendant had
agreed to come back to Bombay along with the plaintiff’s
mother or after a few days. But on this information being
given to the 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 explanation 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
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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 letter. The lower appellate
Court
867
is rather ironical about it, observing "This letter as it
were stands in isolated glory. There is no other letter.
There is no other conduct of the plaintiff which is
consistent with this letter". Without going into the
controversy as to the genuineness or bona fldes of 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 circumstances of the case. 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 attempts
alleged by the plaintiff to have been made by 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 between the parties is
as to the purpose of the visit and the substance of the talk
between 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 plaintiff 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 purpose 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
868
any more to the plaintiff. In this connection it becomes
necessary to examine the evidence of her cousin Babulal and
her father Popatlal. Her cousin, Babulal, who was a member
of her father’s joint family, deposes that on receipt of the
letter, Ex. A, a fortnight later 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".
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The plaintiff’s father is said to have replied that they
"would settle the matters amicably" He also deposes as to
his brother and his brother’s son having gone to the
plaintiff. He further states that he with his wife and the
defendant went to Patan and saw the plaintiff’s mother and
in consultation 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 done
several times and stayed with the plaintiff’s family,
particularly 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
evidence 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 on 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 defendant’s family so that they
might persuade his wife to come back to his matrimonial
home. The subsequent
869
telegram and letters (assuming that both the letters of the
13th and 15th November had been posted in the usual course
and received by the addressees) would give a shock to the
family. Naturally thereafter the members of the family
would be up and doing to see that a reconciliation is
brought about between the husband and the wife. Hence the
visits 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 evidence 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 defendant and her evidence is
corroborated by the evidence of the defendant’s relatives
aforesaid. It cannot be seriously argued that evidence
should be disbelieved, 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 uncorroborated in many parts of
his case and the letters already discussed run counter to
the tenor of his evidence in court. We therefore feel
inclined to accept the defendant’s case that after her
leaving her husband’s home and after the performance 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
870
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plaintiff which could justify her action in leaving him, and
that after the lapse of a few months’ stay at her father’s
place she was willing to go back to her matrimonial home.
This conclusion is further supported by the fact that
between 1948 and 1951 the defendant stayed with her mother-
in-law at Patan 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 matrimonial 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 suggestion of her mother-
in-law the defendant sent her three year old son to Bombay
so that be might induce his’ ,father to send for the mother,
The boy stayed in Bombay for about twenty days and then was
brought. back to Patan by his father as he (the boy) was
unwilling to stay there without the mother., This was in
August_September 1948 when the defendant deposes to having
questioned her husband why she bad not been called back and
the husband’s answer was evasive. Whether or not this
statement of the defendant 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 intercede 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 corroboration of his case of continuous
desertion for the statutory period by the defendant. Their
evidence would have been as valuable, if not more, as that
of the defendant’s father and cousin as discussed above.
Thus it is not a case where evidence was not available in
corroboration of the plaintiff’s case. As the plaintiff’s
evidence on many important aspects of the case
871
has remained uncorroborated by evidence which could be
available to him, we must hold that the evidence given by
the plaintiff falls short of proving his case of desertion
by his wife. Though we do not find that the essential
ingredients of desertion have been 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 reference to case-law was
addressed to us on both sides. For the aforesaid reasons 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.
872