Kuppanna Goundan vs Palani Ammal

Krishnaswami Nayudu, J.—This appeal arises out of a petition by a husband against his wife u/s 5(1)(c), Madras (Hindu Bigamy Prevention

and Divorce) Act, 6 of 1949.

The husband is the appellant. He sued his wife, the respondent for dissolution of marriage on the ground of desertion. The parties were married

in about 1940 and they had a daughter above 9 years old on the date of the petition. There was a partition in the family of the petitioner in 1943

and differences arose between the respondent''s father and the petitioner over the allotment of properties to a deaf and dumb brother of the

petitioner and the respondent left the house of the petitioner and lived with her father. The respondent tiled a suit against the petitioner for

maintenance in O. S. No. 171 of 1943 on the file of the District Munsif''s Court, Erode. On the intervention of mediators, the suit was

compromised on 20-10-1943 and the respondent agreed to go back to the petitioner and live with him.

But apparently she did not join in pursuance of the compromise and the petitioner caused lawyer notice to be sent to her in 1943 and again in 1944

demanding her to come and join him. His case is that since she refused to join him he was obliged to marry a second wife. The second marriage

took place in 1944. The respondent then filed another suit O. S. No. 433 of 1944 on the file of the District Munsif''s Court, Erode, for

maintenance for herself and her minor daughter. She charged the petitioner of not providing any maintenance or taking her back to live with him but

on the other hand married a second wife; and she therefore claimed entitled to separate maintenance.

The trial Court held on the evidence that the respondent was at fault in not having joined the petitioner and rejected her claim for maintenance. She

appealed against that decision and in A. S. No. 191 of 1946 on the flic of the Principal Sub-Court, Coimbatore, the dismissal of the suit was

confirmed on 22-8-1946. During the pendency of the appeal, the Hindu Married Women''s Rights to Separate Residence and Maintenance Act,

19 of 1946 became law on 23-4-1946. A further contention was then raised in appeal that by virtue of the second marriage the respondent would

in any event be entitled to separate maintenance as the petitioner has taken a second wife. The learned Subordinate Judge took the view that the

Act was not retrospective and as the second marriage took place prior to that enactment, the respondent would not be entitled to any relief. As

against that judgment Second Appeal No. 556 of 1947 (Mad) (A) was filed in his Court and Raghava Rao J. held that the Act had retrospective

effect and that the respondent was entitled to separate maintenance and residence and remanded the suit for fixing the maintenance and accordingly

on remand a sum of Rs. 10 per separate residence and maintenance was directed to be paid by the petitioner,

The petitioner in the present petition for dissolution of marriage relies on the finding in O. S. No. 433 of 1944 that the respondent was at fault in

not joining the petitioner and his case is therefore that she has deserted him ever since the middle of 1943, and for a continuous period of more

than three years before the petition and he has become entitled to dissolution of marriage on that ground. The respondent in her counter statement

denied that she went away to her parent''s house but stated that on the contrary it was the petitioner who drove her out after ill-treatment, that he

refused to take her to his house, that under Act 19 of 1946 she is entitled to separate residence, that the second marriage by the petitioner is just

cause for her to leave the petitioner and that therefore it would not constitute desertion in law so as to entitle the petitioner to ask for dissolution.

The learned Subordinate Judge accepted the contention of respondent that she was living separately, as she is entitled to do so by virtue of the

decree in O. S. No. 433 of 1944 and her living separately from her husband could not be said to be without just cause and refused to grant the

dissolution of marriage.

The present appeal is against that order and it came up before our learned brother, Basheer Ahmed Sayeed J. and this appeal is posted before us,

as the learned Judge considered that the point that arises in this appeal is of some importance and there is no decision as to what exactly is the

effect of the order or decree of Court granting separate maintenance to the wife who had already deserted the husband and in respect of which

there has been a finding of two Courts.

The petitioner would be entitled to dissolution of marriage u/s 5(1)(c) if he shows that the respondent has without just cause, deserted the

petitioner for a continuous period of not less than three years immediately preceding the presentation of the petition. ""Desertion"" has not been

defined in the Act''. In Rayden on Divorce, Edn., 5 at p. 101, the learned author defines ""divorce"" as the separation of one spouse from the other,

with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the

consent of the other spouses. He derives his definitions from the decisions in -- ''Williams'' v. Williams'', 1939 3 All ER 825 (B) and -- Tratt v.

Pratt'', 1939 3 All ER 437 (C). In Lately on Divorce, Edn. 14, it is observed at p. 104 that there is no judicial definition of desertion that can be

applied to meet the facts of every case, but it is in essence the abandonment of one spouse by the other with the intention of forsaking him or her

without just cause.

The learned author also referred to the decision in -- ''Frowd v. Frowd'', (1904) 73 LJ 60 (D), where desertion has been defined as ""the cessation

of cohabitation brought about by the fault or act of one of the parties"".

In Section 3(3)(9), Indian Divorce Act, ""desertion"" has been defined as implying an abandonment against the wish of the person charging it. As

pointed out by Sir Wilfrid Greene M. R. in -- ''Pardy v. Pardy'', 1939 3 All ER 779 (E), the two elements, required to he present on the side of

the deserting spouse to constitute, desertion arc the factum of separation and the ''animus descrendi'' or intention to bring cohabitation permanently

to an end. There is therefore possibility of eases arising where there may be a ''de facto'' separation, but the ''animus, in the deserting spouse to

desert may be absent in which case it cannot be held that the spouse who is charged with desertion can be considered to be guilty of desertion. In

English law, desertion may be terminated in several ways. In Rayden on Divorce at p. 115, it is provided that desertion may be terminated in the

following ways:

(1) the factum of return to cohabitation: (2) supervening insanity on the part of the deserting spouse rendering him or her incapable of continuing

on ''animus desercndi''; (3) a supervening ''animus revertendi'', coupled with a bona fide approach to the deserted spouse with a view to

resumption of cohabitation; but not a mere ''animus revertendi unaccompanied by some notification to the deserted spouse; (4) a supervening

consensus to live apart; for example, under a separation agreement bona fide made; (5) supervening conduct on the part of the deserted spouse

which is an effective and reasonable cause in preventing the deserting spouse from returning to cohabitation; (6) a supervening order of a Court of

competent jurisdiction precluding the deserting spouse from returning to cohabitation.

It is also well established that desertion is a continuing offence and once the state of desertion has arisen it will continue until it is terminated, and a

spouse who has been deserted is in the position that the presumption is in his or her favour & against the deserting spouse, and it is not incumbent

on the deserted spouse to show that he or she was at all times during the three years immediately preceding the petition ready and willing to receive

hack the deserting spouse. This is the view of the learned author Rayden based on English decisions referred to at p. 114.

Divorce being a new remedy granted to married people in India to get themselves separated and slatutorily recognised under Act 6 of 1949 in

the absence of Indian decisions the principles of the law of divorce as understood in England may be applied; but their application must be

consistent with Indian notions and ideas of the rights and duties of the spouses to one another & also the parties in this case being Hindus--the

notion of a Hindu marriage being a sacrament and not a contract. There is no doubt in the present case a finding in O. S. No. 433 of 1944 that the

wife was at fault in not having joined the petitioner. It can therefore safely be taken that it is the wife that deserted the husband in this case and

applying the English principles as to the continuance of a state of desertion unless terminated by conduct on the part of the wife and showing an

''animus revertendi'' the position would be that the respondent continued to be guilty of desertion ever since she left her husband''s protection in

1943 and that state of desertion must therefore be deemed to have continued until the date of the presentation of the present petition for the

dissolution of marriage by the husband.

But the question still remains whether in view of the passing of the Hindu Married Women''s Rights to Separate Residence and Maintenance

Act, 19 of 1940, and the recognition of the respondent''s right by the judgment'' of the High Court of Raghava Rao J. in S.A. No. 556 of 1947

(Mad) (A) to separate residence and maintenance it could still be said that the wife''s living apart from the husband is not permitted by law and in

the circumstances it could still be held that the state of desertion continued and not yet become terminated. In this case, Raghava Rao J. took the

view that Act 19 of 1946 is retrospective in effect and that it was applicable to cases where the wife comes to Court for separate maintenance and

residence whose husband had taken a second wife not after the Act but prior to the coining into force of that enactment. We are not expressing

our opinion as to the correctness of that interpretation of the words ""if he marries again"" in Section 2(4) of Act 19 of 1946, since in any event

sitting singly one of us -- Krishnaswami Nayudu J. took a contrary view in--'' Annasami Mudaliar Vs. Ekambari Ammal, .

For the purpose of this case the correctness of that interpretation has to be assumed, since in so far as the parties to the suit are concerned the

decision of Raghava Rao J. has become final.

It must therefore be assumed that in the present case, by an order of Court, the respondent has been permitted to live apart from her husband by

virtue of the provision for separate residence. Her living separately from the husband, that is the fact of separate living could not therefore be said

to be without sufficient authority and by such separate living she could not be considered to have committed an act of desertion. She was therefore

entitled to get separated from the husband, but yet if ''animus deserendi'' is still shown to continue to be present in the respondent, it will be open to

the petitioner to contend that the state of desertion which commenced in 1943 continued to subsist during'' the three years prior to the presentation

of the petition in which case the respondent could not contend that the continuation of that mental frame of the respondent''s mind could be said to

be for any just cause. Though there may be a presumption that the state of mind continues, there is nothing to show that she refused her consortium

to her husband, if her husband was prepared to take her and provide her with a separate residence, where his second wife would not come and

live with him.

Without giving her an opportunity to express her state of mind after the judgment of the High Court in second appeal the petitioner rushed to Court

with a petition for dissolution relying on her living separately as furnishing a cause of action for dissolution of marriage u/s 5(1)(c) of Act 6 of 1949.

Admittedly, the husband did not send any notice of demand asking her to live with him or permitting her his company without the Company of the

second wife. In the counter statement of the respondent, she denied that she refused to live with him. The cause of action is solely based on the

previous proceedings between the parties and not on any conduct of the respondent after the judgment of the High Court in the second appeal,

whereby she has shown any disinclination to have the company of the petitioner. The cause of action on which the dissolution is asked for is her

stay ing away from the petitioner, which staying has new been shown to be fortified by an order of Court based on the rights which a wife has

acquired under Act 19 of 1946 consequent on the husband taking a second wife. It must therefore be held that the separate living in the present

case is not without just cause since it has not been shown that the ''animus deserendi'' continued.

It also appears to us that the petition is not a bona fide one and is filed only with a view to escape the liability of paying separate maintenance to the

respondent ordered in the previous proceedings. To rely upon the act of desertion in 1943 and to hold that such state of desertion continued right

upto the date of the filing of the present petition ignoring the intervening proceedings and the judgment of the High Court in second appeal and

basing a decree for dissolution on desertion would amount virtually to negativing the right of the wife to the benefits of Act 19 of 1946. If the mere

fact of separate living as a result of an order obtained by the wife for separate residence and maintenance under Act 19 of 1946 could be

considered as a ground for dissolution, that may furnish an easy handle to husbands to resort to Act 6 of 1949 and seek to get rid of the first wife.

In granting dissolution of marriages under Act 6 of 1949, the acquisition of right by the wife under the previous enactment, Act 19 of 1946, has to

be given due consideration before a final order severing the marriage lie on the ground of desertion is passed by the Court. Both the enactments

Act 19 of 1946 and Act 6 of 1949 have been introduced with a view to protect and enlarge the rights of married persons, and being enactments

making inroads into the law of marriage as prevailing among the Hindus must be carefully and cautiously applied so that unreasonable and unjust

results may not follow.

We agree with the view taken by the learned Subordinate Judge that the petition could not be sustained and dismiss the appeal with costs.